Annual Report 2 0 0 2 ~ 2 0 0 3

The Hon. Bob Debus MP

Attorney General

Parliament House

SYDNEY NSW 2000

Dear Attorney,

In accordance with section 26 of the Administrative Decisions Tribunal Act 1997, I am

pleased to present the fifth annual report of the Tribunal, covering the period 1 July

2002 to 30 June 2003.

Yours sincerely,

Judge KEVIN O’CONNOR AM

President

10 September 2003

Level 15, St James Centre, 111 Elizabeth St Sydney 2000. DX 1523 SydneyPhone (02) 9223 4677 Freecall 1800 060 410 Facsimile (02) 9233 3283

Telephone Typewriter (02) 9235 2674 www.lawlink.nsw.gov.au/adt

Contents

The Year in Review 4

Our Objectives 6

Services to our Users and Community Relationships 7

Membership 9

Our Divisions and the Appeal Panel 12

General Division 13

Revenue Division 16

Community Services Division 17

Legal Services Division 19

Other Professional Discipline Functions of the Tribunal 22

Equal Opportunity Division 24

Retail Leases Division 27

Appeal Panel 29

Supreme Court 31

Practice and Procedure 33

Case Management 35

Registry and Budget 36

Parliamentary Report 37

Appendices

Appendix A List of Members 38

Appendix B Legislation 40

Appendix C List of Speeches 42

Appendix D Financial Information 42

Appendix E Statistics 43

Appendix F Case Load, Time Standards 50

Appendix G Parliamentary Inquiry 52

Appendix H Rule Subcommittee Membership 55

In last year’s overview, I referred to the

continuing discussion over the desirability

of merging tribunals into larger multi-

jurisdictional tribunals, sometimes called

‘super tribunals’.

In New South Wales a Parliamentary Committee

reported in November 2002 on the jurisdiction

and operation of this Tribunal. Its principal

recommendation was that there be further

legislation to merge separate tribunals into the

ADT ‘unless there are clear reasons

why such inclusion would be inappropriate

or impractical’. The Committee added: ‘with

particular consideration being given to merging

all professional disciplinary tribunals with

the ADT, as part of a separate professional

disciplinary division.’

Other common law jurisdictions are moving

in the same direction. On 24th June 2003

the Western Australian Government introduced

into Parliament a Bill to establish a State

Administrative Tribunal. The SAT is to have three

categories of jurisdiction: a review jurisdiction

(town planning, licensing and other

administrative decisions); an original

jurisdiction (guardianship and administration,

equal opportunity and strata title matters;

retirement villages; commercial credit matters);

and an ‘original vocational jurisdiction’ (wide

range of disciplinary functions over 23

professions, occupations and businesses). The

Bill has passed the Legislative Assembly and

is awaiting consideration by the Upper House.

This is the most extensive tribunal amalgamation

in the country, especially in relation to the

integration of professional disciplinary

jurisdictions.

In the United Kingdom on 11th March 2003 the

Government announced a new united tribunals

service. The service will provide a common

administrative organisation for the 10 largest

tribunals which cover areas such as employ-

ment, pensions, immigration, criminal injuries,

compensation, mental health, social security,

benefits, tax and disability. This announcement

adopts a key recommendation of the Leggatt

report referred to in last year’s overview. The

Government has not as yet responded on the

question of whether some of the major tribunals

will themselves be merged.

One major new jurisdiction was conferred

on the Tribunal during the year. The Appeal

Panel is now responsible for hearing appeals

from decisions and orders of the Guardianship

Tribunal. The General Division is responsible

for review of decisions of the Protective

Commissioner made under financial manage-

ment orders, and of the Public Guardian made

under guardianship orders. The Guardianship

Tribunal appeals jurisdiction commenced in

February 2003. The protective Commissioner

review jurisdiction commenced in May 2003.

The Public Guardian review jurisdiction is yet

to commence.

These arrangements supplement the inherent

protective jurisdiction of the Supreme Court.

In addition there is presently underway a

Ministerial review of the Tribunal. Section 147

of the Administrative Decisions Tribunal Act

1997 requires the Attorney General to review the

Act within 5 years of its enactment ‘to determine

whether the policy objectives of the Act remain

valid and whether the terms of the Act remain

appropriate for securing those objectives’. The

Attorney General’s Department is conducting

the review on behalf of the Minister, and it

called for submissions in November 2002. The

final report may include responses to the

Parliamentary Committee recommendations.

One of the many themes that the Parliamentary

report addressed concerned the balance

between full-time and part-time membership in

the Tribunal.

From 1998 to 2001, the Tribunal had no full-time

members in the strict sense of the term.

The Year in Review

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5

My time was split between this Tribunal and

the then Fair Trading Tribunal, where I was also

head of jurisdiction. All other members of this

Tribunal were part-time with one, Deputy

President Hennessy sitting on a virtually full-

time sessional basis. In March 2001, as reported

last year, Deputy President Hennessy became

a full-time member; and with the dissolution

of the Fair Trading Tribunal (now merged into

the Consumer, Trader and Tenancy Tribunal)

in November 2001, I was available full-time to

this Tribunal.

The Tribunal therefore does much of its work

through the services of an outstanding group of

part-time lawyers and part-time community and

specialist members (formally known as ‘judicial’

and ‘non-judicial’ members).

I am pleased to report that Deputy President

Hennessy was appointed a Magistrate on

11 November 2002, and is to remain full-time at

the Tribunal. This means that our two most senior

(and full-time) offices are filled by tenured

judicial officers. This demonstrates a

commitment on the part of the Government

to furnishing this Tribunal with a degree of

independence that places it apart from the

usual position that applies in tribunals. A

persistent theme of the debate around tribunals

has had to do with the perception that tribunal

members might not be as fearless in making

decisions that impact adversely on government

(or other powerful interests) when their

reappointment to the tribunal depends on the

decision of government.

This report contains detailed information

relating to the operation of the Tribunal during

the year. There are two features that I should

single out in this foreword; the first is to note

that there has been an increase of 10 per cent in

filings this year. The second is that there has

been a 25 per cent improvement in the time for

completion of matters. To have achieved a

significant improvement in the completion rate

when filings were also increasing significantly is

a tribute to the efforts put in by the Registry and

members during the year, for which I thank

them.

There have also been a number of changes in

Divisional Head arrangements during the year.

Acting Judge John Nader RFD QC, took over from

Caroline Needham SC as Divisional Head of the

Legal Services Division in September 2002.

Acting Judge and Emeritus Professor Michael

Chesterman took over from Professor Chris

Rossiter as Divisional Head of the Retail Leases

Division in June 2003. Deputy President and

Magistrate Nancy Hennessy took over from

Judge Megan Latham as Divisional Head of

the Equal Opportunity Division in October 2002.

I would like to thank the outgoing Heads for

their contribution.

Judge Kevin O’Connor AM

President

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Judge Kevin O’Connor AM

The Tribunal’s objectives are set out in the

objects clause of the legislation establishing

the Tribunal, the Administrative Decisions

Tribunal Act 1997 (the ADT Act). Section 3

states:

3. Objects of Act

The objects of this Act are as follows:

(a) to establish an independent

Administrative Decisions Tribunal:

(i) to make decisions at first instance

in relation to matters over which it

is given jurisdiction by an

enactment, and

(ii) to review decisions made by

administrators where it is given

jurisdiction by an enactment to do

so, and

(iii) to exercise such other functions as

are conferred or imposed on it by

or under this or any other Act or

law,

(b) to ensure that the Tribunal is

accessible, its proceedings are

efficient and effective and its

decisions are fair,

(c) to enable proceedings before the

Tribunal to be determined in an

informal and expeditious manner,

(d) to provide a preliminary process for the

internal review of reviewable decisions

before the review of such decisions by

the Tribunal,

(e) to require administrators making

reviewable decisions to notify persons

of decisions affecting them and of any

review rights they might have and to

provide reasons for their decisions on

request,

(f) to foster an atmosphere in which

administrative review is viewed

positively as a means of enhancing the

delivery of services and programs,

(g) to promote and effect compliance by

administrators with legislation enacted

by Parliament for the benefit of the

citizens of New South Wales.

Our Objectives

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The Tribunal is committed to accessibility

and transparency.

Its physical accommodation seeks to

demonstrate a commitment to accessibility

through hearing room designs which are

formal but not intimidating. The design has

incorporated disability access features.

Information materials are written in a simple

and practical way.

Transparency is achieved in a number of

ways. In keeping with the principle of open

justice, all hearings are open to the public

unless special orders are made to close

them. Importantly, the Tribunal publishes all

its reserved decisions and illustrative ex

tempore decisions. This contributes to a key

policy reason for establishing the Tribunal –

the development of normative standards and

values in the areas of jurisdiction for which

it is responsible.

The Tribunal is also seeking to develop

its user group framework. There are long-

standing user group arrangements dealing

specifically with Freedom of Information and

Privacy. At present a Professional Discipline

Advisory Group is being established. The

Rule Subcommittees, dealt with later in the

report, also provide a user group facility for

each of the Divisions.

Hearing rooms and Regional sittings

The Tribunal’s hearing rooms and registry are

at a single location, Level 15, 111 Elizabeth

Street, Sydney. There are four major rooms

used for hearings and there are three smaller

rooms used only for planning meetings and

conferences. In regional New South Wales,

the Tribunal usually sits at the local court.

During the last year the Tribunal sat outside

its Sydney location including Goulburn,

Mudgee, Coffs Harbour, Ballina, Dubbo,

Lismore, Tweed Heads and Lord Howe Island.

Tribunal website

The Tribunal’s website is located at

www.lawlink.nsw.gov.au/adt. It is the

primary source of information about the

Tribunal and is managed by the Attorney

General’s Department.

Services to our Users and Community Relationships

The site provides information about the ADT

legislation and rules, including the daily law

list and all published decisions. It also

provides information about each Division.

All practice notes and standard forms are

available on the website. Practitioners may

also subscribe by email to the daily Tribunal

hearing list.

In the 2002 calendar year there were 286

Divisional decisions and 44 appeal decisions

published in this way. These decisions may

be reached via a link on the ADT website, or

by direct access to the CaseLaw NSW

website. The Tribunal’s decisions are also

available on the Australasian Legal

Information Institute site (AUSTLII).

The average number of pages viewed permonth during the last year was 88,000. Thewebsite’s usage has continued to grow.

In the year covered by this report (1 July

2002 – 30th June 2003) there were 320

Divisional and 43 Appeal Panel decisions

published.

CaseLaw NSW

The CaseLaw service has highly developed,

user friendly search facilities. The CaseLaw

site’s ADT section is used heavily. This is

a major point of contact between the

profession and the work of the Tribunal.

Information brochures

The Tribunal has a range of brochures and

information sheets, the latest titles being -

• Review of NSW Government Decisions

by the ADT

• Prohibited Employment Declarations in

the ADT

• Mediation Conducted by the ADT

• Discrimination Complaints at the ADT

Public presentations

The President, Divisional Heads and other

members of the Tribunal are invited to give

presentations about the work of the

Tribunal, usually to professional audiences.

This occurred several times throughout the

year and a list of significant speeches and

presentations given by the President is

included in Appendix C. Copies of these

papers may be obtained from the Tribunal.

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Website Usage 2002 - 2003

0

20,000

July

40,000

60,000

80,000

100,000

120,000

140,000

AugustSeptember

October

NovemberDecember

JanuaryFe

bruaryMarch April May

June

Web pages viewed per month

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During the year the Tribunal’s membership

comprised 67 presidential or judicial members

and 73 non-judicial members. The list with

appointment information appears in Appendix A.

Members are assigned to specific Divisions. The

assignment is contained either in the instrument

of appointment or following appointment by

instrument issued by the President. Some

members have appointments to two or more

Divisions. There are several judicial members

holding cross-assignments to two or more

Divisions. It is rare for non-judicial members to

hold assignments outside their home Division.

It will be seen that the distribution of men

and women is close to equal across the

Tribunal. Of the judicial members, there are

41 men and 26 women. Of the non-judicial

members there are 30 men and 43 women.

Three Divisions have a high proportion of men – the

Legal Services Division (reflective of the ratio

found among senior barristers), the Revenue

Division and the Retail Leases Division.

Changes in Membership

New Members: There were 4 new

presidential or judicial members appointed

to the Tribunal (this includes new Deputy

Presidents Nader, Chesterman and Hogan)

and 5 non-judicial members (4 being

veterinary surgeons).

Retirements: During the year 12 presidential

or judicial members and 8 non-judicial

members retired or resigned from the

Tribunal following completion of their term

of appointment. Further details are given in

Appendix A.

Appointments to Bench: Two members of the

Legal Services Division were appointed

judges during the year: Mr Henric Nicholas QC

was appointed a Supreme Court judge, sworn

in on 5 February 2002. Mrs Annabelle Bennett

SC was appointed a Judge of Federal Court of

Australia, sworn in on 5 May 2003.

Advertisements for New Members: During the

year, the Tribunal advertised for judicial

members of the Community Services Division

and Retail Leases Division; and non-judicial

members of the Equal Opportunity Division.

The Tribunal also advertised for judicial and

non-judicial members for the Guardianship

and Protected Estates List of the General

Division.

Deputy Presidents: In addition to the new

Divisional Heads already mentioned in the

President’s foreword, Mr Alan Hogan (formerly

an Acting Judge of the District Court) joined

the Tribunal in October 2002 as a part-time

Deputy President. Deputy President Hogan has

had a distinguished career as a solicitor, as a

founder of practical legal training courses for

law graduates, as a Supreme Court Master (in

the ACT) and as an acting judge. He has mainly

sat in the Legal Services Division, the Revenue

Division and presided in appeals arising from

those Divisions.

Membership

Tribunal Membership by Gender 2002-2003

49% Women

51% Men

Members’ Professional Development Day

The main professional development event

each year is the annual training day. We

have had many distinguished speakers at

this day, which also serves as the one day

each year when most of the members come

together at the one time. Otherwise email

contact is used to keep members informed of

case law and procedural developments

relevant to their responsibilities. It is also

the case that many members have a

relatively occasional involvement with the

Tribunal (only called on when a matter within

their area of speciality arises) while others

are used on a regular basis (the key part-

time judicial members of the General

Division, for example). This is a pattern

which is to an extent inevitable in a tribunal

that places importance on retaining

specialist approaches, but obviously

creates complexity from the viewpoint

of professional training and the like.

On 8 November 2002, the Tribunal held its

fourth annual professional development day

at the Australian Museum. The theme for the

day was “Maintaining Quality, Providing

Access”.

Topics addressed included:

• Avoiding Legal Error in the Tribunal

Environment - Justice Susan Kenny of

the Federal Court of Australia

• Contemporary Trends in Statutory

Interpretation – Emeritus Professor

Dennis Pearce

• Expert Evidence in Tribunals – Ian

Freckleton

• Difficult Litigants – Professor Paul

Mullen

The final session comprised a panel on

“Speed, Informality and Quality: Managing

the Mix in Tribunals” comprising Justice Paul

Stein of the Court of Appeal, Michael Sexton

SC, Solicitor General and Megan Greenwood,

Registrar of the Land and Environment Court.

The day also included break out sessions

with Andrew Lang, a retail leases expert

addressing the Retail Leases Division;

Michael Sassella, Senior Member of the

Administrative Appeals Tribunal, addressing

the General Division; Sarah Pritchard,

international human rights law expert,

addressing the Equal Opportunity Division

and Amanda Adrian, the Health Care

Complaints Commissioner addressing

members of the Legal Services Division

and the Veterinary Disciplinary Panel.

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Dr Ian Freckleton, Judge O’Connor, Justice SusanKenny and Emeritus Professor Dennis Pearce.

Magistrate Nancy Hennessy, Justice Paul Stein,Michael Sexton SC and Megan Greenwood.

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Good Decision Writing: package of videos and

training material

A professionally produced set of videos of

the seminar on Good Decision Writing,

together with the relevant papers, are

available from the Tribunal. The package is

available to incoming members to assist

them in decision writing. It has been

acquired by many tribunals, other

organisations such as government

authorities with statutory decision-making

responsibilities and university law schools

with special courses relating to tribunals.

The Tribunal has received feedback praising

the quality of the seminar and the materials

from experienced members of other

tribunals. The videos are available at a

reasonable cost to interested people or

organisations.

Council of Australasian Tribunals

There is great value in tribunal members and

tribunal heads meeting to discuss common

concerns in the operation of tribunals. In

last year’s annual report the progress of the

initiative to establish a Council of

Australasian Tribunals (COAT) was outlined.

During the year a steering committee

convened by the President of this tribunal,

and comprising Commonwealth tribunal

heads with head offices in New South Wales

and State tribunal heads developed a draft

State Chapter constitution and a strategy for

establishing a State Chapter of COAT.

On 24 February 2003, the New South Wales

State Chapter held an inaugural event at the

New South Wales Parliament House

comprising a keynote address on a topic of

interest to tribunals and an outline of the

proposed State Chapter. The event was well

attended, with over 120 members drawn from

various State and Federal Tribunals. The

keynote speaker was Justice Keith Mason,

President of the New South Wales Court of

Appeal who spoke on ‘The Bounds of

Flexibility in Tribunals’. On 22 May 2003 the

State Chapter was founded. The meeting

took place after an afternoon seminar held

by COAT in co-operation with the Australian

Institute of Administrative Law (AIAL). Mr

Nick O’Neill, President, Guardianship

Tribunal of New South Wales, is the founding

convener of the Chapter’s committee.

The annual national conference of tribunals

was held in Sydney in June 2003. Almost all

states reported that State Chapters of COAT

had been established. The national

executive of COAT was elected. Justice Garry

Downes, President, Common-wealth

Administrative Appeals Tribunal, is the

founding Chair of COAT taking over from the

interim Chair, who did so much to make this

initiative a reality, Justice Murray Kellam of

Victoria. Justice Downes has stated that a

priority for the new National Executive is the

development of a model national tribunals

members manual.

The conceptual classification used by the ADT

Act to define the work of the tribunal –

‘review of reviewable decisions’ and ‘original

decisions’ – does not precisely capture the

difference between that part of the business

of the Tribunal that can be said to be of an

‘administrative’ or public law character

(proceedings to which a private citizen and a

government agency or a body exercising public

power are parties), on the one hand; and that, on

the other hand, which is of a ‘civil’ or private law

character (disputes between private parties).

Three Divisions deal substantially or exclusively

with administrative disputes between citizens

and government. These are the:

• General Division: operative 6 October 1998.

This Division hears most applications by

citizens for the review of administrative

decisions or administrative conduct.

• Community Services Division: operative

1 January 1999. This Division hears

applications for review of various

administrative decisions made in the

Community Services, Disability Services and

Ageing portfolios. Its main business at

present involves the hearing of applications

by citizens for exemption from prohibition

on being engaged in child-related

employment because of a past serious sex

offence to which a government agency is the

respondent.

• Revenue Division: operative 1 July 2001.

This Division hears applications for review

of various State taxation decisions.

The Legal Services Division is the fourth Division

of an ‘administrative’ or ‘public law’ character as

its ultimate duty is to the public interest, when

considering whether a member of a profession

should be removed from the public register and

prohibited from continuing to practise.

• Legal Services Division: operative

6 October 1998. This division hears

complaints referred under the Legal

Profession Act 1987 against legal

practitioners and licensed conveyancers.

The Tribunal has disciplinary functions affecting

other professions located in the General

Division. A short report on them is given after

the Legal Services Division report.

Two Divisions (Equal Opportunity and Retail

Leases) are engaged in dealing with disputes of

a ‘civil’ character.

• Equal Opportunity Division: operative

6 October 1998. This Division hears

complaints of unlawful discrimination

referred to it by the President, Anti-

Discrimination Board under the

Anti-Discrimination Act 1977.

• Retail Leases Division: operative 1 March

1999. This Division hears claims by parties

to retail shop leases made under the Retail

Leases Act 1994.

Appeal Panel

The Tribunal has an Appeal Panel, which hears

internal appeals from decisions made by the

Divisions of the Tribunal and external appeals

from other decision-makers (presently only the

Guardianship Tribunal), as prescribed by Chapter

7 of the ADT Act.

In the following presentation, the Divisions

have been grouped according to the conceptual

category into which their work mainly or wholly

falls, i.e. ‘administrative review’, ‘professional

discipline’ and ‘civil’.

Our Divisions and the Appeal Panel

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Deputy Presidents John Nader, Nancy Hennessy,Tom Kelly, Michael Chesterman, President KevinO’Connor: Divisional Heads as at 30 June 2003.

13

The President, Judge Kevin O’Connor, is the

Divisional Head of the General Division.

About 45 per cent of applications received

by the Tribunal go to the General Division.

There were 344 applications filed during the

year compared to 294 last year.

The work of the Division has traditionally

divided between review of occupational

licensing decisions and, what might be

called, information law reviews. Into the

first category fall security industry,

passenger transport and commercial fishing

licensing decisions (and less exactly,

firearms licensing reviews, as many of

the citizens affected have firearms for

recreational rather than occupational

reasons). Into the second category fall

review of determinations made by agencies

under the Freedom of Information Act 1989

(FOI Act) and review of the conduct of

agencies under the Privacy and Personal

Information Protection Act 1998 (Privacy

Act). The major increase in the General

Division was mainly due to an increase in

Privacy Act filings.

Structure and functions

Applications for review of administrative

decisions or (in the case of the Privacy Act)

review of administrative conduct are heard

by a judicial member sitting alone unless

there is a requirement to the contrary, as in

school appeals and local government cases.

There are two general directions days each

month, presided over by the President or

Deputy President Hennessy.

These directions days deal with all

applications except in FOI and Privacy

matters.

Usually the administrator will have given the

review applicant a brief of the evidence on

which it relies ahead of the directions day.

Simple directions are then made for the

applicant to put on evidence, and for the

administrator to the reply and a date for

final hearing is set for four to six weeks’

time. At final hearing simpler matters are

dealt with by ex tempore reasons, and in

more difficult matters decisions are usually

reserved.

All FOI and Privacy Act applications are first

referred to a planning meeting, a type of

preliminary conference. The planning

meeting process is used to seek to identify

the scope of the dispute and to ascertain the

extent to which the dispute remains

resolvable without going to hearing. It is

common for FOI matters to be substantially

reduced in their scope, though most

ultimately reach a hearing. It is common,

at this stage, for most Privacy Act matters

to be entirely resolved through this

process. These matters typically stay in

the Tribunal longer than other types of

review applications. Directions are made

as required.

While most of the work of the General

Division involves administrative review,

General DivisionThe ‘Administrative Review’ Sector

Application by Act12%M

Firearms ActMM

13% Road TransportM(General) Act (s.48)NM

M

5% FirstMHome OwnersMGrant ActNMM

28%MOtherNMM

10%MPrivacy Mand PersonalMInformationMProtection Act

6%MSecurityMIndustry ActNMM

15%MFreedom ofM

InformationMAct

11%MPassengerM

Transport ActNMM

there are some other jurisdictions of importance

allocated to the General Division. The most

important is that of veterinary surgeons

discipline; and another of significance is the

determination of applications for dismissal from

office of elected councillors made under the

Local Government Act. Veterinary surgeons

discipline is dealt with after the Legal Services

Division section below.

Legislation

An important new review jurisdiction conferred

during the year relates to administrative

decisions of the Public Guardian and the

Protective Commissioner, already discussed in

the President’s overview.

Guardianship and Protected Estates Legislation

Amendment Act 2002. Guardianship Tribunal

orders (now appealable to the Appeal Panel)

will often confer responsibility for their

implementation on two public offices, the

Public Guardian and the Protective

Commissioner. Decisions made by those offices

are now reviewable decisions. Public Guardian

reviews are yet to commence. Those reviews will

be heard by members of the General Division,

who have been assigned to a List to be known as

the Guardianship and Protected Estates List.

Similarly, at least two of the three members to

sit on appeals from the Guardianship Tribunal

will be drawn from that list. This is seen as an

important means of ensuring that appropriate

specialist understandings and knowledge are

brought to this new and especially sensitive

category of work.

Licensing and Registration (Uniform

Procedures) Act 2002. This Act establishes

uniform procedures with respect to the

administration of licensing and registration

schemes, and includes a right of review in

respect of licensing decisions covered by the

Act. New licence categories will fall under this

Act, and be reviewable by the ADT.

Significant cases and themes

The General Division issued 157 published

decisions, ranging across 30 enactments. It is

not practical to seek to give an overview of all

the published decisions that have emerged

from the General Division during the year.

(The General Division routinely gives ex

tempore decisions that are not published on

the internet, often after telephone hearing,

in applications for review of instant

suspensions from driving ordered by police

officers after negative roadside breath tests.

There were 48 decisions of that kind during

the year).

Possibly the area of most significance during

the year has involved the Privacy Act. In the

year 2000-2001 there were three applications

for review of the conduct of a public sector

agency lodged under this Act. In 2001-2002

there were 11 applications lodged; in the

present year there were 38 applications

lodged. These applications are all referred to

planning meetings before a judicial member

belonging to the Freedom of Information and

Privacy List. The practice, unless a party

objects, is that this member will manage the

case for its entirety, including hearing.

The Privacy Commissioner is notified of

applications, and has a right to appear and be

heard. A staff member of the Privacy

Commissioner ’s office routinely attends

planning meetings.

It is not uncommon for there to be two (and

sometimes more) agencies also represented

at the meeting. Often the complaint will

involve more than one agency as, for

example, where it is alleged that there has

been an unlawful disclosure of personal

information from one public sector agency to

another public sector agency.

Every attempt is made at these planning

meetings to generate options for resolution

of the complaint. Often the applicant will be

satisfied if the respondent agency

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acknowledges some fault on its part, gives an

apology and makes a credible promise to alter

practices in future so as to ensure that the

problem does not occur again.

Since the commencement of the jurisdiction

to 30 June 2003, there have been 9 published

General Division decisions and

1 Appeal Panel decision, 8 of them this year.

The main issues so far dealt with in the 10

decisions have been:

(i) those of a preliminary kind

• Scope of exclusions from the meaning

of ‘personal information’ and therefore

from the rights given by the Act;

exclusions considered - ‘information or

an opinion about an individual’s

suitability for appointment or

employment as a public sector official’

(Tribunal ruled exclusion covered

adverse comment contained in the

report of a management review that

examined the applicant’s work

performance); ‘information about an

individual that is contained in a

publicly available publication’ (held to

apply to a newspaper article in which a

journalist records some negative

information about an individual).

• Effect of failure to seek internal review

within period fixed by Act on right to

apply to Tribunal (held absolute time

bar, no jurisdiction).

• What is the time limit on making an

application to the Tribunal after the

internal review has been completed

(held no clear time limit applies).

• Whether the Office of Ombudsman may

be the subject of an application for

review of its conduct, or is protected

from action by an immunity from civil

suit found in its enabling legislation

(held immunity not applicable, judicial

review proceedings pending in Court of

Appeal).

(ii) those of a substantive kind

• Whether authorisation clause in

enrolment form sufficient to permit

collection by the enrolling University

of academic record information from a

previous University attended by the

applicant (held did not contravene Act,

appeal dismissed by Appeal Panel).

• Whether a previous University orally

disclosing academic history

information to the University where its

former student was now seeking

enrolment contravened the Act by not

holding an appropriate consent or

other authorisation from the former

student for the disclosure (held that

the University had contravened the

Act’s requirements relating to

disclosure of personal information;

appeal to Appeal Panel pending).

• Whether Corrective Service’s practice

of retaining ex-inmate records in its

main prisoner records system and its

controls in relation to access to

workstations from which this

information could be read contravened

the Act’s requirements in relation to

security and retention of personal

information (held that in the

circumstances contraventions ought

not be found, but noted if the agency

failed to implement new security

controls on ex-inmate records in the

timeframe promised (12 months) a

different view might be taken if the

question arises again).

• Whether the Health Care Complaints

Commission had contravened Act in

sending correspondence, referring to

alleged misconduct of a sexual nature

by the health practitioner, to a

business address that was not the main

business address of the practitioner

(held no contravention).

The Revenue Division commenced operation

on 1 July 2001. A Divisional Head has not

been appointed. The President continues to

handle the relevant responsibilities. The

Division hears applications for review of

taxation decisions made under various

statutes by the Chief Commissioner of State

Revenue.

Structure and functions

A judicial member sitting alone hears

applications for review. Initially, a

directions hearing is held. Often the parties

will agree to the matter being heard 'on the

papers' having regard to written legal

submissions, as the underlying facts are

usually not in dispute. The judicial members

appointed or assigned to this Division all

have substantial tax law expertise.

Case load and significant themes

During this year there were 55 filings

compared to 48 in the previous year. There

were 42 decisions with 40 published.

The Division has dealt with issues such as:

meaning of principal place of residence for

land tax purposes; whether a transfer was

pursuant to the terms of a will and therefore

exempt from usual duty; scope of discretion

to exempt from land tax; whether duty

payable if transfer proves to be incapable of

execution; whether a Commissioner ’s

opinion constitutes a reviewable decision;

and whether Commissioner precluded from

exercising statutory duty to levy tax in

respect of past years because of change of

position by taxpayer.

Revenue Division

16

Appeals by Act 2002-2003

35% Land Tax ManagementMAct 1956

13% Duties Act 1997

47% Taxation AdministrationMAct 1996

9% Payroll Tax Act 19710% Stamp Duties Act 1920M0% Parking Space Levy Act 1992

17

The Divisional Head is Mr Tom Kelly, Deputy

President who serves on a part-time basis.

Structure and functions

The Community Services Division has both a

merits and original decisions role. At present

most of the applications are for original

decisions being applications by persons for

exemption from the provisions of the Child

Protection (Prohibited Employment) Act 1998

(CPPE Act) so that they can work with persons

under the age of 18 years.

The review applications relate to decisions

about custody and guardianship of state wards;

disability funding; alleged failure of the

Department of Community Services to act on

certain recommendations of the Community

Services Commission; and the failure of the

Community Services Commission to consider

certain complaints. When hearing a merits

review application the Tribunal sits as a three

member panel, comprising a judicial member

and two non-judicial members who have

experience or knowledge directly relevant to

the subject matter of the proceedings.

Case load

There were 57 applications filed during the

year, of which 48 (84%) were original

applications under the CPPE Act. There were 82

decisions issued, with 23 being published.

(This compares with 70 filings last year of which

59 were CPPE matters). The number of review

applications continues to be static. The fall in

applications under the CPPE Act can be

attributed to amendments to the Child

Protection Legislation Amendment Act 2002

which were proclaimed in February 2003. This

legislation gives an applicant the option of

making an application the Commission for

Children and Young People or to Tribunal.

Applications to the Commission are dealt with

administratively and a dissatisfied applicant

can still make an application to the Tribunal or

the New South Wales Industrial Relations

Commission. The intention of this amendment

was to divert the less serious matters away from

the Tribunal.

Legislation

The Community Services Legislation

Amendment Act 2002 commenced on

1 December 2002. This Act substantially amends

the Community Services (Complaints, Reviews

and Monitoring Act 1993 (the CS (CRM) Act).

The Community Services Legislation

Amendment Act 2002 abolishes the Community

Services Commission and transfers the

functions of that organisation to the

Ombudsman. The functions of the Ombudsman

under the CS (CRM) Act include:

• Reviewing the situations of persons (including

children) or groups of persons in care

• Reviewing the deaths of certain children and

people with a disability in care

• Co-ordinating Community Visitors

• Monitoring, reviewing and setting standards

for the delivery of community services.

The Tribunal does not have any right to review

decisions of the Ombudsman under the CS

(CRM) Act. This represents only a minor change

from the old legislation. Under that legislation,

there was a right of review of

a decision of the Community Services

Commission to investigate a complaint, being

an investigation that was beyond its powers

and a right or review of a decision of the

Community Services Commission that was

beyond its powers.

The Adoption Act 2000 commenced operation

on 1 February 2003. This Act repeals the

Adoption Information Act 1990 and the

Adoption of Children Act 1965. Decisions under

the Adoption Act 2000 are reviewed by the

Community Services Division. The types of

decisions that can be reviewed and the review

process is detailed in Chapter 10. Generally,

the types of decisions that can be reviewed fall

into the following categories:

Community Services Division

• The accreditation of adoption service

providers including imposition of

conditions of accreditation, revocation

and suspension of accreditation

• The failure or refusal to supply adoption

information such as the original birth

certificate or birth records

• The failure or refusal to enter the name

of any person in a prescribed register e.g.

Advance Notice Register, Contact Veto

Register and the Reunion & Information

Register

• The failure or refusal to arrange a reunion

• The failure or refusal to contact a person

who has lodged a contact veto.

Significant cases and themes

Individuals who have been found guilty of a

‘serious sex offence’ (a broadly defined

matter) are not allowed to work in child-related

employment unless they obtain an exemption

from the Tribunal. The Commission for Children

and Young People (CCYP) appears as

respondent and indicates its view to the

Tribunal. It often obtains a psychological report

on the applicant.

During the year the Supreme Court dismissed

an appeal by the CCYP challenging the way the

Tribunal and the Industrial Relations

Commission have been interpreting the CPPE

Act when assessing whether an applicant was a

risk to persons under the age of 18 years:

Commission For Children and Young People v AG

[2002] NSWSC 949. This decision is covered in

more detail later in this report.

The child custody disputes that come before

the Tribunal are usually both difficult and

complex. A typical matter was Mr & Mrs HA v

Minister For Community Services [2003]

NSWADT 149. This was an application by

grandparents against the removal of their long

standing care of their 12 year old grandchild,

who was ward of the Minister, following

contentious allegations of mistreatment by

the child against the grandfather. At the time

of the Tribunal hearing the child was in the

custody of the Department of Juvenile Justice

as the result a criminal conviction. The child

had severe behavioural problems and had been

in police custody on numerous occasions for

a variety of alleged offences. After 5 hearing

days the Tribunal dismissed the grandparents’

application but made a number of

recommendations in respect of the short term

and long term placement of the child as well as

suitability of the grandparents as foster

parents.

In one case during the year, the relevant

Minister raised a complex jurisdictional

question before the Appeal Panel. The review

applicants, who were respondents to the

appeal, were unrepresented foster carers of

several children who were wards of the

Minister. Unrepresented applicants face great

difficulty in effectively putting a case on such

issues. It was pleasing to find that the Bar

Association arranged for them to be given pro

bono representation. The Appeal Panel

delivered its decision in Minister for Community

Services v Mrs A (CSD) [2002] NSWADTAP 32 on

29 August 2002.

18

Applications by Type 2002 - 2003

0%MDisabilityMFunding

Declaration that Child Protection (Prohibited Employment)MAct 1998 does not apply 85%

4% Guardianship9% Custody

2%MChildMCareM

Licence

19

The Divisional Head is the Honourable John

Nader RFD QC, Deputy President and Acting

Judge who serves on a part-time basis. He

took up his appointment as Divisional Head on

1 September 2002.

Deputy President Nader has had a

distinguished career in the law. He practised

at the Sydney Bar from 1962 to 1982

ultimately specialising in criminal law. He

served as a Justice of the Supreme Court of the

Northern Territory from 1982 to 1992. Since

his return to New South Wales, he has been an

Acting Judge of the District Court; a Hearing

Commissioner with the Human Rights and

Equal Opportunity Commission; Chairman,

Parole Board; and Commissioner of Inquiry

into allegations made by the Hon. Franca

Arena. Ms Caroline Needham SC, the founding

Divisional Head of the Legal Services Division,

resigned from her position as Divisional Head

on 31 August 2002.

Structure and functions

The Legal Services Division is the successor to

the Legal Services Tribunal. The Division is

one of three mechanisms available for dealing

with misconduct by legal practitioners. Most

importantly, the Supreme Court has an

inherent jurisdiction to remove a legal

practitioner from the roll of practitioners

(confirmed by the Legal Profession Act 1987

(LPA), s 171M). The Division’s jurisdiction is

conferred by the LPA. Like the Supreme Court

it has a range of sanctions for misconduct

and may order deregistration. The third

mechanism is the powers recently given to the

Bar Association and the Law Society to cancel

or suspend practising certificates. Such

decisions obviously affect the right to

practise but do not involve removal from the

roll. (See Legal Profession Amendment

(Disciplinary Provisions) Act 2001).

The right to take action in the Tribunal is given

to the Legal Services Commissioner, the Bar

Association and the Law Society. The

proceedings are initiated after investigation

by an information which sets out the

allegations and the degree of the misconduct

alleged, being either unsatisfactory

professional conduct or professional

misconduct. Hearings are conducted by

three-member panels, comprising two

judicial members, who are solicitors or

barristers member and a non-judicial

members. There is a power to constitute a four

member panel with a second non-judicial

member. It has not as yet been exercised.

The Division at present also has jurisdiction

over licensed conveyancers.

Case load

There were 18 informations lodged against

legal practitioners in the last year, as

compared to 38 in the previous year. Twelve

alleged professional misconduct: 9 as to

solicitors; 3 as to barristers. One information

against a barrister alleged both professional

misconduct and unsatisfactory professional

conduct. There were 4 informations laid

under ss 48I and 48K of the LPA. These

provisions relate to the employment by legal

practitioners of persons who are not fit and

proper persons to be employed or paid in

Deputy President John Nader RFD QC

Legal Services Division‘Professional Discipline’ Sector

connection with a practice, who are

disqualified persons, or who are persons who

have been convicted of indictable offences.

There was one information laid against a

licensed conveyancer, and it alleged

professional misconduct.

The Tribunal dealt with 51 matters during the

year. As a result the matters pending in the

Division are down to 23 as compared to 56 a

year ago. There were 42 published decisions.

As at 30 June 2003, there were 23 matters

pending in the Division.

Legislative change

On 7 August 2003 Australia’s Attorneys-

General endorsed the concept of a national

legal profession, and the adoption of uniform

laws to achieve that end. Model draft

provisions have been circulated for comment.

The model provisions include definitions of

misconduct and uniform rules as to such

matters as trust accounts. There will be

provision to ensure that disciplinary orders

made in one jurisdiction are effective in all

jurisdictions.

In November 2002 the Attorney General’s

Department released a report titled the Legal

Profession Act 1987: A Further Review of

Complaints against Lawyers. This report

addressed substantive issues raised in the

New South Wales Law Reform Commission

report, Complaints against lawyers: an

interim report released in August 2001. The

report made numerous recommendations

regarding the complaints handling process,

including supporting nationally consistent

standards for handling complaints between

the State and Territories.

The Legal Practitioners’ Disciplinary Register,

maintained by the Office of the Legal Services

Commissioner, commenced operation on

4 October 2002. The Register records the

names of legal practitioners who have had

disciplinary action taken against them,

including orders made by the Legal

Services Division. The Register can be

viewed on the Commissioner ’s website:

<http://www.lawlink.nsw.gov.au/olsc/nswdr.

nsf/pages/index>.

Significant cases and themes

During the year the Tribunal ordered that 14

solicitors be removed from the roll of legal

practitioners.

In 3 cases practitioners were found not guilty.

Lesser orders ranging from caution to

suspension were imposed in the other cases.

A table of the orders imposed by the Legal

Services Division can be found in Appendix E.

As was the case last year, most of the cases

involved abuse of client trust in relation to

financial matters. The majority of cases

brought before the Tribunal affected more

than one client of the solicitor.

The conduct which led to names of legal

practitioners being removed from the roll

included:

• A legal practitioner who agreed to invest

the money of numerous clients on

mortgage. The sum misappropriated was

approximately $1.5 million.

• A solicitor practising on her own account

failed to keep a trust account and kept no

records at all. The money held on behalf of

clients was used for other purposes.

• Misappropriation of trust moneys from

numerous clients to meet personal debts,

including misuse for personal purposes by

the solicitor of damages received by his

daughter after a car accident.

• A legal practitioner was found to have

forged a client’s signature on consent

orders and then falsely attested to the

client having signed the orders in her

presence.

20

21

The Tribunal emphasised the importance of the

duty of candour. A failure to be candid may be

found to constitute misconduct. In one instance

the practitioner had informed the Law Society

of a problem with alcohol, but failed to disclose

a problem with cocaine. This problem became

known when he was convicted for possession of

a prohibited drug. Another case involved lack of

candour as between practitioners. The Tribunal

found that a practitioner had knowingly misled

another practitioner in stating that a defence

had been filed. The Tribunal noted that such

conduct undermines the trust reposed by the

community in legal practitioners, namely, that

what one practitioner says to another as to

steps that have been taken can be accepted

without question.

In two cases, each legal practitioner was

appearing for the third time before the

Tribunal. Having found similar conduct again

proven, the Tribunal ordered that the solicitors

be struck off.

The Law Society agreed to the dismissal of

several of its informations as they were

affected by procedural shortcomings that

deprived the Tribunal of jurisdiction as

identified by the High Court in Barwick v Law

Society of NSW [2000] HCA 2. There had been

some doubt as to whether the Tribunal could

enter an order for dismissal if it was found not

to have jurisdiction, now resolved in Law

Society of NSW v Carver [2003] NSWADT 158

(27 June 2003). The Tribunal held that it had

jurisdiction to make an order of dismissal in

such cases but that there was no power to make

any order as to costs.

In a decision handed down on 7 March 2003,

Law Society of NSW v ET [2003] NSWADT 41, the

Tribunal found that a 16 year old junior clerical

assistant did not fall within the meaning of the

term “clerk” as used in s 48I of the LPA when

regard was had to the historical usage and role

of a solicitor’s clerk. Accordingly, the Tribunal

was not competent to make disciplinary orders

against the young woman.

Supreme Court: In order to provide a rounded

account of the discipline of legal practitioners

during the year, it is desirable to refer briefly

to the work of the Supreme Court.

A number of cases have involved appeals from

decisions affecting practising certificates made

by the professional bodies. The nature of the

powers conferred on the professional bodies,

and the relevant statutory provisions, were

examined in New South Wales Bar Association v

Murphy (2002) 55 NSWLR 23; [2002] NSWCA

138 (28 June 2002). See also Doherty v The Law

Society of NSW [2003] NSWSC 105 (28 February

2003); Wardell v New South Wales Bar

Association [2002] NSWSC 548 (3 July 2002)

and New South Wales Bar Association v Stevens

[2003] NSWCA 95 (24 April 2003).

The Supreme Court exercised its inherent

jurisdiction in two cases. One, unusually,

involved an application by the practitioner to

have his name removed for misconduct; and the

Court so ordered: Symrnis v Legal Practitioners

Admission Board [2003] NSWCA (2 April 2003).

In another case the Court conducted an inquiry

into whether a practitioner should be

considered fit to continue to practise in New

South Wales in light of a disciplinary order

made against him after the time he had

commenced practice in New South Wales by the

jurisdiction in which he had previously

practised (a State in the United States). The

Court was satisfied that the misconduct found

against him in the US involved extraordinary

circumstances, was unlikely to be repeated and

that his record of practice in New South Wales

was without blemish. He was found to be fit to

continue to practise: Gersten v The Law Society

of NSW [2002] NSWCA 344.

Legislative Developments. The Tribunal will

lose part of its jurisdiction in relation to

licensed conveyancers. The Conveyancers

Licensing Act 2003 was assented to May

2003, but is yet to commence. Disciplinary

proceedings against licensed conveyancers

formed part of the original jurisdiction

of the Legal Services Division. This

Act transfers responsibility for original

disciplinary decisions to a public servant,

the Director General of the Department

of Fair Trading. The Director General may

make disciplinary orders ranging from

caution to cancellation of licence. The

conveyancer may apply for review by the

Tribunal.

During the year the Tribunal acquired a

disciplinary review jurisdictions, in respect

of surveyors. Under the Surveying Act 2002,

the Tribunal is empowered to review

disciplinary orders made by the Surveyors

Board involving findings of professional

incompetence or professional misconduct.

These review functions are to be exercised

in the General Division.

Veterinary Surgeons Discipline: The

Veterinary Surgeons Act 1986 confers

jurisdiction on the Tribunal constituted as

a Veterinary Disciplinary Panel to conduct

disciplinary inquiries in relation to

practitioner conduct referred to it by

the Veterinary Surgeons Investigating

Committee, and to hear review applications

from practitioners whose conduct has been

dealt with in the first instance by orders

of the Committee (it can make orders in

less serious cases).

Four inquiries relating to the same

practitioner that commenced in 1999 were

the subject of decisions as to liability during

the current year. They have yet to proceed to

the making of final orders due to various

appeals. The decisions deal with a range of

factual and legal issues, including the

important question of what activities of a

veterinary surgeon belong to the sphere of

professional conduct, and accordingly can

give rise to findings of professional

misconduct where there is a transgression

of standards. The decision in one of the

inquiries has been set aside on the basis

that the Tribunal was without jurisdiction to

hear the matter because of omissions in the

procedures followed by the statutory body

responsible for the initial investigation

of the case, the Veterinary Surgeons

Investigating Committee: Lloyd v Veterinary

Surgeons Investigating Committee [2003]

NSWADTAP 19. In that case the Panel had

found that professional procedures had not

been followed in relation to the diagnosis

of a skin condition in a cat.

The other inquiries, also subject to appeals,

made adverse findings against the

practitioner in relation to the diagnosis and

treatment of a horse which died while in

care, as well as in relation to burial practices

adopted by the practitioner and his conduct

towards the owner of the horse; in relation

to the surgery undertaken on an injured dog;

and in relation to the diagnosis and

treatment of a dog that died while in care:

all titled Veterinary Surgeons Investigation

Committee v Lloyd [2003] NSWADT 95

(Inquiry 1, the injured dog); [2003] NSWADT

96 (Inquiry 2, the deceased horse); and

[2002] NSWADT 285 and [2003] NSWADT136

(Inquiry 3, the deceased dog).

In another inquiry a Panel found proven

several complaints against an experienced

practitioner, most importantly, that he had

issued a false certificate vouching for the

freedom from disease of ram semen

intended for export to New Zealand for use

in connection with artificial insemination;

and that explanations given and laboratory

Other Professional Discipline Functions of the Tribunal

22

23

reports as to the certificate were false. The

original complaint had been made by the

Department of Agriculture who expressed

concern over the effect of such conduct on

Australia’s international standing in an

important area of trade in agricultural

products. The practitioner was deregistered

for two years. An appeal has been lodged

and is yet to be determined. The Appeal

Panel refused an application to stay the

operation of the order for deregistration.

See Veterinary Surgeons Investigating

Committee v Howe [2002] NSWADT 191;

[2003] NSWADT 156; before Appeal Panel as

to stay, [2003] NSWADTAP 14.

There were no cases involving applications

for review of Committee disciplinary orders

during the year.

Left to Right: Dr Tanya Stephen, Dr Timothy Crisp,Dr Richard Jane and Dr Garth McGilvray, Veterinary Disciplinary Panel, ProfessionalDevelopment Day, 8 November 2002.

Structure and functions

The Equal Opportunity Division (EOD) hears

disputes between parties involving alleged

breaches of the Anti-Discrimination Act

1977. The Divisional Head is Deputy

President Magistrate Hennessy. Deputy

President Hennessy is a full-time member of

the Tribunal and sits on matters in Divisions

other than the Equal Opportunity Division.

A complainant must first lodge a complaint

with the President of the Anti-

Discrimination Board (ADB). If the complaint

cannot be conciliated or it cannot be

resolved for some other reason, it may be

referred to the Tribunal.

Case load

The President of the ADB referred 149 new

complaints to the Tribunal during the

financial year. The Tribunal also has a

limited jurisdiction to review decisions of

the President of the ADB. During this

financial year one application to review a

decision of the President to decline to

entertain a complaint was filed in the

Tribunal but was subsequently withdrawn by

the applicant. One hundred and fifty one

matters (150 complaints, one review) were

disposed of during the year and 105 matters

remained pending at the end of the year.

There were 48 published decisions.

The Tribunal conducts a preliminary case

conference at which parties are offered the

opportunity of mediation before the matter

proceeds to hearing. Of the 150 original

complaints that were finalised during the

year mediation was conducted in 53 matters.

Of those 53 matters, 47 settled at or after

mediation and 6 proceeded to a hearing. Of

the balance (103) 61 were resolved in other

ways, and a total of 42 matters proceeded to

a hearing. Of those, 26 were dismissed

either summarily or after a hearing.

A complaint may allege more than one

ground of discrimination. The most

frequently alleged grounds of

discrimination were disability (51), sex

(37); race (34); and sexual harassment (32).

The President of the ADB also referred 22

complaints of age discrimination, 10

complaints of homosexuality discrimination

and 9 complaints of discrimination on the

ground of a person’s responsibilities as a

carer. There were 3 complaints of

homosexual vilification referred and only 1

complaint of racial vilification. The

remaining complaints comprised 2

complaints of transgender discrimination

and 1 of marital status discrimination.

In the Equal Opportunity Division the time

standards for disposal of matters is that 80%

of matters should be finalised within 12

months and 20% within two years. In

November 2002, the Deputy President

introduced a timely decisions policy to the

Division which sets out the expectations in

relation to the time a presiding member will

take to hand down a decision. The timeliness

of decisions has improved significantly

since the implementation of this policy. Of

the 151 cases disposed of during the year 111

24

Equal Opportunity DivisionThe ‘Civil’ Sector

Magistrate Nancy Hennessy

25

(74%) were disposed of within 12 months

and 40 (26%) in more than 12 months. While

these figures do not yet meet the time

standards set as a target by the Tribunal,

they compare favourably with the previous

financial year when 60% of matters were

disposed of within 12 months and 40% in

more than 12 months.

Significant cases and themes

Eleven of the cases that went to hearing

resulted in findings substantiating the

complaints, and orders were made against

the respondents. Three of those cases

related to disability discrimination, five

to racial discrimination and one each to

sex discrimination, sexual harassment

and victimisation.

Some representative examples with

summaries of the discrimination proven

follow:

• Disability Discrimination: inadequate

provision of audio loop system by the

Government in the Supreme Court

thereby discriminating against a party

to proceedings with a hearing disability

– Bradley v State of New South Wales

(No 2) [2003] NSWADT 94. Award of

$6,379 damages.

• Racial Discrimination: refusal to lease

house on ground of race to an

Aboriginal person. There was evidence

from five witnesses as to the owner

making derogatory remarks about

Aboriginals when dealing with the

complainant. Sheather v Daley [2003]

NSWADT 51. Award of $10,000 damages.

• Sex Discrimination: against male who

wore earring at work and was dismissed

from job. Bree v Lupevo Pty Ltd [2003]

NSWADT 47. Award of $16,956 damages.

• Sexual Harassment: female apprentice

hairdresser the subject of repeated

inappropriate comments and conduct of

a sexual nature from her employer to

whom she was indentured. Tabbouch v

Noyeaux [2003] NSWADT 6. Award of

$5,709 damages.

The highest award of damages during the

year was the maximum amount possible for a

single complaint - $40,000 in Peck v

Commissioner of Corrective Services [2002]

NSWADT 122. The Commissioner rejected Mr

Peck’s application for employment as a

catering supervisor and cook on the ground

that due to a minor knee impairment he had

a loss of agility that meant he did not meet

the requirements for entry as a prison

officer. The Tribunal was satisfied that

he was fit for the position and that the

rejection of his application amounted to

discrimination on the ground of disability.

The costs rule is that the Division does not

make orders against unsuccessful parties

unless it is of the opinion that there are

‘circumstances that justify it doing so’: Anti-

Discrimination Act 1977, s 114(2). This

year there were several findings of

circumstances justifying costs awards being

made against respondents.

Applications by Ground of Discrimination

19%MDisability

15% SexNM

14% OtherNMM

9%MAgeNMM

13%MSexualMharassmentNMM

14%N RaceNM

16%MVictimisationNM

M

In Borg v Commissioner, Department of

Corrective Services & Anor [2002] NSWADT

42 (decided during 2001-2002) the Tribunal

found complaints of sexual harassment

proven and awarded the complainant

$47,500 in damages. The case involved a

large amount of evidence and proceeded

over several days. The complainant’s legal

costs exceeded $77,000. The question of

whether the applicant should be awarded

costs was dealt with this year. The Tribunal

decided to award costs: Borg v

Commissioner, Department of Corrective

Services & Anor [2003] NSWADT 35. One

reason the Tribunal ordered the respondents

to pay the applicant’s costs was that the

matters raised in the case were matters

of public importance. They concerned the

rights of correctional officers to work in

an environment free from harassment

and the corresponding obligations of the

Department to provide such an environment.

The Tribunal said that, ‘The public interest

aspect of the case assumes even greater

significance when it is recognised that

the prevailing "prison culture" inhibits

Correctional Officers from making formal

complaints against their supervisors.’

The respondent was also ordered to

pay the complainant’s costs in Peck v

Commissioner of Corrective Services No. (2)

[2002] NSWADT 244. The Tribunal has

also awarded costs against unsuccessful

applicants especially where the applicant

has caused the proceedings to be far more

prolonged than was reasonable to air and

dispose of the application: see, for example,

Battenburg v Chief Executive Officer &

Secretary, Union Club [2002] NSWADT 219.

For the first time, the Tribunal appointed a

person pursuant to s 71(4) of the

Administrative Decisions Tribunal Act

1997 to represent an applicant in the

proceedings. Section 71(4) provides that

‘If it appears to the Tribunal that a party is an

incapacitated person, the Tribunal may

appoint any other person it thinks fit to

represent the party...’ The Tribunal found

that the applicant has a mental disability

which makes him incapable of conducting

his own case. (See EM -v- Commissioner

of Police, New South Wales Police Service

[2002] NSWADT 268.) The Tribunal has a list

of persons who are suitable to be appointed

under s 71(4) as a guardian for a person

who is incapacitated.

In MM & AM v State of NSW, Department of

Community Services [2002] NSWADT 256 the

Tribunal held that the Minister and the

Director-General of the Department of

Community Services provide "services"

within the meaning of sections 49M(1)

and 47 of the AD Act when determining

applications by people to become 'foster

parents'. This means that any determination

of such applications in a discriminatory

manner will be unlawful. The respondent

appealed, and the Appeal Panel has referred

this question to the Supreme Court for

its opinion pursuant to s 118D of the

Administrative Decisions Tribunal Act 1997.

26

27

Structure and functions

The Division has operated since 1 March

1999, taking over the jurisdiction from the

(now dissolved) Commercial Tribunal. It

hears applications made by retail shop

lessees or retail shop lessors pursuant to the

Retail Leases Act 1994 (RLA).

The former Divisional Head, Professor

Christopher Rossiter, stood down in June

2003 but will continue as a part-time Deputy

President of the Tribunal. The new Head is

Deputy President Michael Chesterman, an

Emeritus Professor of the University of New

South Wales whose present appointments

include Acting Judge of the District Court.

Deputy President Chesterman has had a

distinguished academic career which

included 22 years as a professor in the

Faculty of Law at the UNSW with 5 years’

service as Dean. He has been active in law

reform work, and in 16 of the past 20 years

has held appointments as a member of either

the Australian Law Reform Commission or the

NSW Law Reform Commission.

Under the RLA as originally enacted the

Tribunal could hear one type of claim, a

retail lease claim alleging breach of a

requirement of the RLA or the general law.

Following amendments made in 1998 on 12

October 2001 a second type of claim became

possible – an unconscionable conduct claim

alleging breach of a new statutory obligation

placed on lessors and lessees that of not

engaging in ‘unconscionable conduct’.

Relevant factors are listed in s 62B.

There are special constitution provisions

relating to the hearing of unconscionable

conduct claims. The presiding member must

sit with two non-judicial members with an

industry background who act as advisers (if

they are available). The presiding member

must meet special qualification

requirements in relation to experience. If, as

is common, the applicant makes both a retail

leases claim and an unconscionable conduct

claim in relation to the one chain of conduct

the Tribunal must be constituted on a multi-

member basis and restrict its choice of

presiding member. This gives rise to

considerable administrative difficulties for

the Registry and impedes the ability of the

Tribunal to bring on and deal with urgent

applications. Such applications are not

uncommon in this Division, especially in a

lock-out situation or where consents to

assignment are being withheld to the

detriment of a deal to sell a business. These

and a number of other issues will be taken up

by the Tribunal in the context of the

Government’s review of the RLA currently

underway.

During the year, most of the preliminary and

main hearings in ‘pure’ retail tenancy claims

were conducted by one of five judicial

members, each of whom is a highly

experienced practising senior solicitor with

expertise in commercial leasing. In most

cases, the members actively seek to

generate options for early resolution. A

similar approach is taken in relation to

unconscionable conduct claims usual listed

before the President or the Divisional Head.

Retail Leases Division

Deputy President Michael Chesterman

Case load

There were 84 applications pending at the

beginning of the year, 142 applications filed

during the year, and 159 disposed of, leaving

a pending number of 67. The average

numbers of applications disposed per month

this year was 13.25. Many matters settle.

Often a matter will return to directions on

several occasions. This is tolerated if there

is evidence that the parties are seeking to

resolve their dispute without going to

hearing.

Final orders after hearing were made in 34

cases. There were 40 published decisions,

several relating to interim applications.

Approximately 21 per cent of filings give rise

to final hearings. There is therefore a 79 per

cent settlement rate after lodgment in the

Tribunal. This statistic points to the

effectiveness of the work done by members

at directions – no doubt assisted by the

preparedness of respondents in particular

(often major shopping centre owners) to

take a commercial approach to the dispute.

Significant cases and themes

The issues dealt with in the 34 decided cases

this year included:

• Representations by lessor in relation to

future developments at shopping centre

• Interference with lessee’s use of shop

caused by demolition and construction

work taken as part of refurbishment and

redevelopment of shopping centre

• Failure to satisfy terms of mediation

agreement intended to resolve all matters

in dispute

• Whether premises predominantly used for

a purpose that brings them within the

scope of the RLA

• Unconscionable conduct by lessor in

inducing a prospective purchaser of the

lessee’s business to deal direct with the

lessor thereby denying the lessee the

opportunity of a sale (lessor ordered to

pay damages $6000)

• Whether lessee entitled to display signs

at the entrance to the shopping centre

advertising business, and relevance of

past practice

• Scope of permitted use in relation to

takeaway items

• Whether premises fall within the size

restrictions as to what types of shops can

be the subject of proceedings under the

RLA

There were again a number of decisions

dealing with whether there were special

circumstances justifying an award of costs

to one of the parties.

28

Applications by Type 2002 - 2003

79% RetailMTenancy Claim

21% Retail Tenancy ClaimsMand UnconscionableMConduct Claim

29

The President has overall responsibility for theAppeal Panel’s operation.

Structure and functions

For internal appeals, the Appeal Panel mustcomprise a presidential member, a judicial memberand a non-judicial member. The non-judicialmember must come from the Division under appeal,as well as one of the other two members. In thecase of internal appeals, the Panel must also beconstituted by a presidential member, a judicialmember and a non-judicial member. In the case ofguardianship and protected estates appeals, thenon-judicial member must have been appointed bythe responsible Minister and have experience indealing with persons who have a disability. TheTribunal will follow the practice of ensuring that thejudicial member is drawn from the Guardianshipand Protected Estates List.

The convention is for the Divisional Head to presideon internal appeals from their own Division, unlessit a decision of the Divisional Head sitting at firstinstance that is being appealed.

Legislative change

As noted in the President’s overview the division ofthe Appeal Panel’s business into internal appealsand external appeals derives from amendments toguardianship and protected estates legislation. TheAppeal Panel may hear appeals against certaindecisions of the Guardianship Tribunal, and inrelation to orders of Magistrates and the MentalHealth Review Tribunal under the Protected EstatesAct 1983. (See Guardianship and Protected EstatesLegislation Amendment Act 2002).

Case load

There were 72 appeals filed this year, compared to61 last year. The distribution of appeals broadlyreflects the underlying distribution of business inthe Tribunal. More detailed statistics about theAppeal Panel are provided in Appendix E. Theincrease in appeals matches the rate of increase inunderlying applications lodged.

One external appeal has been filed so far.

During the year the Appeal Panel determined 67appeals. Fourteen were upheld in whole or in part,

36 dismissed and 8 withdrawn or discontinued.Some of the decisions were delivered ex temporewith the giving of short oral reasons.

Forty-three Appeal Panel decisions were publishedon the CaseLaw NSW site, the cases beingnumbered [2002] NSWADTAP 23 to 44; and [2003]NSWADTAP 1 to 22. They were all internal appeals.As at 30 June 2003 one external appeal had beenlodged, and was at the directions stage. The 43published appeals for this year were divided asfollows: General Division, 14; Equal OpportunityDivision, 14; Retail Leases Division appeals, 7;Legal Services Division, 4; Community ServicesDivision, 2 and the Revenue Division, 2. Thepresiding members in these appeals were:President, 20; Deputy President Hennessy, 12;Deputy President Latham, 4; Deputy PresidentNeedham, 2; Deputy Presidents Nader, Hogan,Kelly, Rossiter and Chesterman, 1 each.

There are 4 appeals pending in the Supreme Court.One Appeal Panel decision from May 2002 was setaside (Tu v University of Sydney [2003] NSWCA170) and the other three appeals remain pending.

Significant cases and themes

The Appeal Panel dealt with a range of issues, mostof which were procedural or jurisdictional incharacter. The following is a cross-section of themain issues that arose in appeals during the year.

Appeal Panel

Applications lodged by Division

45%MGeneralMDivision

2% LegalMServicesMDivision

7% Community ServicesMDivision

7% RevenueMDivision

19%MRetailMLeasesMDivision

20%MEqualMOpportunityMDivision

Jurisdiction:

(1) Commercial Fishing Licences: The AppealPanel held, reversing the Tribunal, that thejurisdiction of the Tribunal under the relevantlegislation did not extend to reviewingdecisions to revoke licences or endorsements,even though there was clear power to reviewcancellations and suspensions: Ministerfor Fisheries -v- Oliver & Thomson; Ministerfor Fisheries -v- Rouse; Minister for Fisheries-v- Picton [2002] NSWADTAP 43. (Insubsequent judicial review proceedings,Rouse v Minister of Fisheries [2003] NSWSC700, the decision in issue was set aside asbeing manifestly unreasonable).

(2) Pre-Condition to Jurisdiction in ProfessionalDiscipline. The Appeal Panel held, reversingthe Panel, that a Veterinary Disciplinary Paneldid not have jurisdiction to hear anddetermine an inquiry as the statutoryprocedures for investigating a complaint hadnot been strictly followed by the investigatingbody prior to the inquiry being referred to theTribunal: Lloyd v Veterinary SurgeonsInvestigating Committee (GD) [2003]

NSWADTAP 19.

(3) Pre-Condition to Jurisdiction in Retail LeasesClaims. The Appeal Panel upheld a Tribunaldecision that a mediation agreement operatesas a bar to the commencement of proceedingsin the Retail Leases Division: Dimizantos andAnor v Deutsche Property Funds ManagementLtd (RLD)(2003) NSWADTAP 13.

Costs Discretion:

(1) Substantial Failure to comply with Directions:In Tu v University of Sydney (No. 2) (EOD)[2003] NSWADTAP 25 (set aside by SupremeCourt on other grounds) the Appeal Panelawarded costs against an appellant after asubstantial failure on his part to co-operatewith directions and respond to them in atimely way.

(2) Serious and Baseless Allegations. In Hardingv Vice Chancellor, University of New SouthWales (EOD) [2002] NSWADTAP 36, costs were

awarded against an unsuccessful appellantwho made serious and baseless allegations ofprofessional misconduct against therespondent's legal representative during thehearing of the appeal.

(3) Lack of Any Merit. Costs awarded by AppealPanel as appeal was ‘entirely without merit’:Murphy v David Jones Limited [2002]NSWADTAP 42.

(4) Conduct of Agent. Power to award costsagainst agent discussed. In this case theagent had filed a retail leases matter withoutfirst attempting mediation, company clientwas in liquidation, no clear evidence thatliquidator had authorised proceedings, theclaim was for the maximum amount and notparticularised: Kondos & Anor v Citadin PtyLimited (RLD) [2003] NSWADTAP 7. (The issueof costs against a witness was discussed in aDivisional decision: Locaputo v DirectorGeneral, Department of Fair Trading (No 2)[2003] NSWADT 108).

Other Veterinary Surgeons Discipline: Review ofMinor Disciplinary Orders: The nature of theTribunal’s powers to review minor disciplinaryorders made by the investigating body isconsidered in Veterinary Surgeons InvestigatingCommittee -v- Hopwood (GD) [2003] NSWADTAP11.

Freedom of Information: Exclusion. The AppealPanel, upholding the Tribunal, held that theimmunity conferred on a ‘tribunal’ by s 10(2) ofthe FOI Act applies to the Victims CompensationTribunal in respect of documents relevant to itsdeterminative functions: N v Director-General,Attorney-General’s Department (GD) [2002]NSWADTAP 41.

Equal Opportunity: Burden of Proof. In Dutt vCentral Coast Area Health Service; Central CoastArea Health Service v Dutt (EOD) [2003]NSWADTAP 3, the Appeal Panel addressed theapplicability of the "Briginshaw principle" toanti-discrimination cases.

30

Under s 119 of the ADT Act, Appeal Panel

decisions may be appealed on a question of law

to the Supreme Court. Under s 118 an Appeal

Panel may refer a question of law to the Supreme

Court for its opinion. As noted in last year’s

report, this power is occasionally used in

relation to issues where a speedy, authoritative

resolution of the question is desirable. The

Tribunal or the Appeal Panel may also be the

subject of review proceedings in the Supreme

Court, by way of a summons. There are some

instances where a Divisional decision of the

Tribunal is not appealable to the Appeal Panel

but is appealable to the Supreme Court.

Examples are found in the Local Government and

Child Protection legislation.

During the last year the Supreme Court dealt with

5 statutory appeals, one referral and 2 reviews

by way of summons.

Appeals

(1) Termination of Custody of Children: In YG &

GG v Department of Community Services

[2002] NSWCA 247 the Court upheld the

Appeal Panel’s decision reversing a decision

of the Community Services Division of the

Tribunal. The Appeal Panel had found errors of

law, set that decision aside and went on to

determine the merits. The Appeal Panel,

disagreeing with the Division, affirmed the

Department’s decision to terminate a long

term foster care placement affecting two

children. The Court of Appeal decision is

significant in relation to: the need for the

Tribunal to make a current assessment of what

is the ‘correct and preferable’ decision; the

approach to be take to determining the best

interests of the child; what the relevant

standard of proof is in relation to allegations

of mistreatment of the child in this context;

consideration of the High Court decision in M

v M (1988) 166 CLR 69; and if abuse is found,

but restoration of children considered

desirable, the nature of the obligation falling

on the Tribunal to give reasons. Both the

Appeal Panel and the Court were critical of the

way the Department dealt with the foster

parents in relation to the removal of the

children; and the failure to put to them the

nature of the allegations; and over delays.

These concerns led the Court to make no order

as to costs.

(2) Sex Offenders and Child Related

Employment: The Court dealt with the issue of

the proper approach to be taken to the

exercise of the discretion to exempt persons

who have committed serious sex offences

from the prohibition on working with

children. In Commission for Children and

Young People v V [2002] NSWSC 949 the

Court emphasised that the focus should be

the original crime and the person’s current

character. Once that is examined the decision

is to be made as to whether the person does

or does not pose a risk to the safety of

children. If a person establishes that he or

she does not pose a risk to the safety of

children, then the Tribunal has a discretion as

to whether or not it will make an order. It

noted that the applicant bears the onus of

establishing that he or she was not a risk and

that was ‘to a high standard’.

(3) Freedom of Information: Amendment of

Health Assessment: In Crewdson -v- Central

Sydney Area Health Service [2002] NSWCA

345 a former employee had been given access

to a health assessment that had been taken

into account as part of process leading to the

termination of his employment. He sought to

amend the record under the rights given by

the FOI Act. The Appeal Panel set aside the

decision of the General Division allowing the

applicant to have the record amended,

primarily on the basis that a record

expressing a professional opinion should

ordinarily only be permitted to be amended if

there is professional opinion in support of

such a step accepted by the Tribunal. That had

Supreme Court

31

32

not occurred. There were also rulings on the

way relevant provisions of the Act were to be

interpreted. The Court dismissed the appeal.

(4) Election - Irregularity – Necessary Order:

The Tribunal decided to dismiss a councillor

from civic office pursuant to s 329 of the

Local Government Act 1993 on the basis of

irregularities in the manner of his election.

Having found the case proven, the Tribunal

considered that it was obligated to order

dismissal even though the relevant provision

stated that the Tribunal ‘may’ make such an

order. The dismissed councillor appealed. The

Court dismissed the appeal, agreeing with the

Tribunal that in this statutory context the

word ‘may’ did not confer a discretion once

the case was proven. Roberts v Jeffery & 4 Ors

[2003] NSWSC 162.

(5) Reconstitution of Tribunal: In Lloyd v

Veterinary Surgeons Investigating Committee

[2002] NSWCA 224 the Court of Appeal dealt

with the interpretation of s 79 of the ADT Act

which deals with reconstitution of the

Tribunal when a member becomes

unavailable. The Court held that, properly

construed, the section required that the

Tribunal sitting as a whole, not the President

alone, should have made orders as to the

procedure to be followed after reconstitution

of the Tribunal in a part-heard matter. It set

aside the Appeal Panel’s decision upholding

the President’s exercise of power, and the

orders made. The Court of Appeal also made

observations on the issue of the extent of

flexibility available to the Tribunal in relation

to how to proceed with a part-heard matter

where there has been a reconstitution.

Reviews by Summons

(1) Tribunal Procedure: Issuance of Proposed

Orders: Bias and Procedural Fairness. The

Court of Appeal upheld a decision of a single

Judge who had dismissed an appeal against a

procedure adopted by the Tribunal involving

the publication of proposed orders before the

making of final orders. The appellant, a

veterinary surgeon who had been the subject

of an inquiry alleging professional

misconduct, claimed that the procedure gave

rise to an apprehension of bias which

disqualified the Tribunal from making final

orders. Howe v Administrative Decisions

Tribunal of New South Wales & Ors [2003]

NSWSC 157, Dunford J, 13 March 2003; Howe v

Administrative Decisions Tribunal of New

South Wales [2003] NSWCA 120, Gyles JA,

12 May 2003.

(2) Appeals from Appeal Panel or Tribunal

constituted by a Judge. In line with earlier

Supreme Court decisions the Court ruled that

the proceedings should be referred to the

Court of Appeal rather than remain in the List

before a single Judge of the Supreme Court

and referred to s 48 of the Supreme Court Act

1970 despite the existence of a power to

retain it in the List under s 51: The

Ombudsman v Robert Koopman & Anor

[2002] NSWSC 1203, Dunford J (13 December

2002).

Referred Questions

The Tribunal referred one question of law to the

Supreme Court during 2002-2003. The question

arose in the matter of MM & AM v State of NSW,

Department of Community Services [2002]

NSWADT 256 (discussed above in the Equal

Opportunity Division section of this report).

The Court of Appeal also handed down judgment

in Commissioner of Police v Estate of Russell

(2002) 55 NSWLR 232 on 20 August 2002. This

was an appeal from a decision of a Supreme Court

judge on a referral on a question of

law from the Equal Opportunity Division:

Commissioner of Police v Estate of Russell

[2001] NSW 745. These decisions were discussed

in the 2001-2002 Annual Report.

33

The practice of the Tribunal is formally

documented in its Practice Notes and Rules.

The general approach that the Tribunal has

adopted has been to set out its practice

on matters in practice notes, wherever

possible, rather than formally-made rules.

This approach enables the Tribunal to take a

flexible approach to dealing with practice

issues, and making to amendments quickly if

needed. The rules of the Tribunal are found in

the Administrative Decisions Tribunal

(Interim) Rules 1998 contained in the

Administrative Decisions Tribunal Rules

(Transitional) Regulation 1998.

Practice Notes

The President has issued four further

Practice Notes this year. These are:

• PN 9 General Division : Licence

Suspensions under Fair Trading Act

1987: Procedures relating to

Applications for Review

• PN 10 All Divisions : Access to the

Tribunal - Use of Telephone and Video

Links

• PN 11 External Appeals : Procedures for

External Appeals to the Appeal Panel of

the Tribunal

• PN 12 Costs

The Rule Committee

The ADT Act provides for the establishment

of a Rule Committee. The Tribunal’s Rule

Committee comprises the Tribunal’s

President and Divisional Heads together

with Justice Alwynne Rowlands (founding

President, Victorian Administrative Appeals

Tribunal, presently Family Court Judge),

Professor Margaret Allars (barrister and

administrative law expert) and Mark

Robinson (barrister and judicial member

of the Tribunal).

During the year the Committee examined

issues such as the Divisional Subcommittees’

reports, the commencement of the

Guardianship and Protected Estates List, the

Attorney General’s five year statutory review

of the ADT Act and various Practice Notes

issued by the President.

The Rule Committee also examined the

recommendations made by the Parliamentary

Inquiry conducted by the Committee on the

Office of the Ombudsman and the Police

Integrity Commission under section 146 of the

Administrative Decisions Tribunal Act 1997,

into the operation and jurisdiction of the

Tribunal. The Parliamentary Committee’s

Report was tabled in November 2002 and

the Tribunal will report, in its annual

report, progress in implementing the

recommendations that are practice and

procedure related. That report is at Appendix G.

Divisional Rule Subcommittees (see Appendix

H) can make recommendations to the Rule

Committee about practice and procedure.

The subcommittees are scheduled to meet at

least twice each year. The constitution of the

subcommittees is prescribed by the ADT Act

to include members of the Tribunal from the

relevant Division and three people that

represent community and relevant special

interests in the area. The minutes of

each Subcommittee are considered at the

next Rule Committee meeting and any

recommendations made are debated.

The subcommittees also provide a valuable

avenue for the Tribunal to gain feedback on

its performance.

Alternative dispute resolution

Alternative dispute resolution is used widely

in several Divisions of the Tribunal.

Mediation is conducted extensively in Equal

Opportunity Division matters as well as in

some Community Services, privacy and

freedom of information matters. Mediations

Practice and Procedure

34

are conducted by suitably qualified

members of the Tribunal. The Tribunal is

conducting a review of its mediation process

commencing in June 2003.

Prior to cases in the Retail Leases Division

being lodged, parties are required to attend

the Retail Tenancy Unit of the Department of

State and Regional Development for

mediation.

A variety of early-case-management

practices is used in the various Divisions to

explore settlement possibilities or narrow

the issues requiring hearing and

determination by the Tribunal. In the Equal

Opportunity Division most matters are listed

for a case conference before a judicial

member prior to the hearing. In privacy and

freedom of information applications

planning meetings are conducted to explore

settlement options and manage the progress

of the matter. In other Divisions matters are

listed for a directions hearing.

The ADT Act also allows for the appointment

of assessors and the use of early neutral

evaluation. The Tribunal has yet to use these

facilities.

35

The stages through which an application

passes are: directions/conferences,

(sometimes) interim order applications,

filing of submissions and statements, final

hearing and publication of reasons.

General position

As noted in last year’s report an organisation

that is demand driven, such as this Tribunal,

should seek to clear as many matters over a

year as it receives by way of new filings.

That avoids a build-up in matters on hand – a

growing back-log. In the period from October

1998 (when the Tribunal commenced) to June

2002, there was a small but steady growth in

the back-log, due possibly to new incoming

jurisdictions and, during the year 2001-2002

to a shortage of hearing room space while

renovations occurred. It is pleasing to report

that during the current reporting year there

has been a substantial improvement. Last

year at year’s end there were 433 matters

pending as compared to 695 filings during

that year, a proportion of 62 percent. This

year the position is that there are 382

matters pending as compared to 766 filings

during the year, a proportion of 50 percent.

The raw number of matters pending has

declined significantly. There have been 175

more clearances than in the previous year.

The average time across the Tribunal for

dealing with an application is just under 6

months (the pending number divided by the

number of filings for the year expressed as a

proportion of the year) down from 7.5 months

a year ago.

Specific time standards which seek to

acknowledge the variation that exists

between the nature of the matters dealt with

in each Division have been developed for

each Division.

Divisional time standards

Four Divisions have adopted the same

general standard, i.e. that 85 per cent of

applications be completed within 6 months of

lodgment; and all within 12 months.

Standards of this kind are not necessarily

capable of achievement in all cases.

Ultimately external factors beyond the

control of the Tribunal can intrude. For

example, appeals may be taken. The

proceedings may be stayed in consequence.

There may be aspects of the orders made that

require a matter substantially completed to

remain before the Tribunal, though the

Tribunal seeks to avoid practices which have

that result. There may be difficulties relating

to the obtaining of evidence that stand in the

way of completion within the stated periods.

The time standards are seen as goals to be

worked towards.

There are separate standards for the other

two Divisions, the Equal Opportunity Division

and Legal Services Division, and there are

also different standards for Professional

Discipline matters (such as veterinary

surgeons); and for Appeal Panel matters.

Appendix F contains more detailed statistics

on case load; and on performance as

compared to the time standards.

Case Management

Case Load Comparison

900

2001 - 2002

Applications Files

800

700

600

500

400

Num

ber o

f App

licat

ions

300

200

100

02002 - 2003

Applications Completed

36

The Registry provides the following services:

responding to enquiries, registration of

applications and all formal papers relating to a

matter, hearing support, case management and

general administrative support to members. In

addition, Registry staff maintain the Tribunal’s

website, ensuring that information about the

Tribunal’s jurisdiction and procedures are up-

to-date and readily available to the public.

Staff

The Registry has a position of Registrar, Deputy

Registrar and nine Tribunal officers. The

Registrar position is filled by two staff who job

share. Registry staff work in small teams

specialising in case management, client

services and support services. In order to

develop and maintain individual skills staff are

rotated between the teams.

A separate position of Research Associate to

the President of the Administrative Decisions

Tribunal provides legal and research support to

assist the President and full-time Deputy

President in their deliberations, and keeps

members of the Tribunal abreast of current

issues.

Projects

Staff in the Registry continue to engage in

team based projects designed to improve

service delivery to the Tribunal’s users. Current

projects include a review of case management

practices in the Registry; continuing to raise

the profile of the Tribunal in the community by

way of effective web design, brochure

development and presentations at conferences;

and, developing a survey of registry users.

A high number of parties appearing before the

Tribunal are unrepresented, except in

professional disciplinary matters. The Registry

continues to incorporate improvements to

services to litigants in person in all its projects.

Staff development

Staff receive training through the Attorney

General’s Department Corporate Development

and Training Unit and attendance at relevant

conferences.

Additionally, staff have received in house

training on new legislation and procedural

changes. This year special attention has been

paid to providing registry staff with the skills

necessary to accommodate the Tribunal’s new

jurisdiction in guardianship and protected

estates matters.

Performance planning and development is used

as a tool to identify opportunities for individual

staff to develop and consolidate the skills they

require to effectively deliver services to

members and Tribunal users.

Budget and financial information

The Tribunal is an independent statutory body

which, for budgetary purposes is a business

centre within the Attorney General’s

Department.

The Tribunal has two sources of funds.

Government funding is provided by a budget

allocated by the Attorney General’s Department

and funding allocated by the trustees of the

Public Purpose Fund. The Public Purpose Fund

is used primarily to meet the cost of operating

the Legal Services Division of the Tribunal. The

Public Purpose Fund comprises interest earned

on solicitor’s clients’ funds held in compulsory

trust account deposits under the Legal

Profession Act. Appendix D provides a picture

of the expenditure incurred by the Tribunal in

the reporting period.

Registry and Budget

37

As noted in the President’s overview theParliamentary Committee on the Office ofOmbudsman and the Police IntegrityCommission completed an inquiry into thejurisdiction and operation of the Tribunalduring the last year. The inquiry was requiredby s 146 of the Administrative DecisionsTribunal Act 1997. The inquiry presented itsfinal report in November 2002.

The Chair of the Committee, Mr Paul LynchMP, said that the Committee’s examination ofoperational issues was directing at ensuringachievement of the following goals:

• that the ADT’s proceedings are informal,flexible and free from excessivelegalism;

• that mediation and alternative disputeresolution are actively used, whereappropriate;

• that there is adequate access for, andassistance to, applicants;

• consistent and transparent decision-making;

• there is adequate consultation of usergroups in the ADT’s rule-making process;

• a strong core full-time membership;

• appropriate panel composition andspecialisation;

• open and transparent selection andappointment of tribunal members;

• improved standards of professionaldevelopment and training for tribunalmembers; and

• adequate resources for the ADT toperform its functions.

The Chairman said that the Committee waspleased to report that the ADT had moved toimplement recommendations that it had madein its March 2001 discussion paper. TheCommittee had noted that the ADT did nothave a strong framework for consulting itsusers and, noting its diversity of jurisdictionsand relative smallness, recommended that itdevelop an existing facility, the RuleCommittee and Rule Subcommittee structure,

for that purpose. This has occurred.

The Committee made 11 formalrecommendations as a result of its inquiry.The principal recommendation went to thequestion of merger of tribunals. TheCommittee recommended that there befurther legislation to merge separatetribunals into the ADT ‘unless there are clearreasons why such inclusion would beinappropriate or impractical’. The Committeeadded: ‘with particular consideration beinggiven to merging all professional disciplinarytribunals with the ADT, as part of a separateprofessional disciplinary division.’

The other recommendations of theParliamentary Committee called for asystematic policy approach to conferringjurisdiction in respect of the review ofgovernmental administrative decisions on theADT, and to that end called on the AttorneyGeneral to establish principles, andrecommended the establishment of astanding advisory committee to the Minister,the Administrative Review Advisory Council,modelled broadly on the lines of theCommonwealth Administrative ReviewCouncil.

Turning to the specific responsibilities of thePresident and Deputy Presidents of the ADT,the Committee recommended that the Act beamended to give them specificresponsibilities for directing the professionaldevelopment and training of tribunalmembers. The Committee referred to anumber of administrative recommendationsthat it made in its discussion paper of March2001 and recommended that the Tribunalreport on them in its annual report. This isdone at Appendix G of this report.

In a further development the ParliamentaryCommittee and the Health Care ComplaintsCommission has sought submissions onwhether health professional tribunals shouldbe moved to the ADT (discussion paperNovember 2002).

Parliamentary Report

This list of members of the Tribunal indicates who held appointments during the reporting period, organisedby Divisions. In the case of new members appointed during the current reporting period, their date ofappointment to this Tribunal is shown next to their names. In the case of continuing members, their first dateof appointment is shown in the relevant previous annual report. Some members held appointments to formertribunals. These were continued under transitional provisions. If a member has been assigned to more thanone Division, there is a corresponding entry. The President is assigned to all Divisions.

PresidentJudge Kevin Patrick O'Connor, AM, to 9 August 2004Assigned to all Divisions in accordance with s 21(1) of the Administrative Decisions TribunalAct 1997.

Deputy President (Full-time)Magistrate Nancy Louise Hennessy, to 7 March 2004 Assigned as set out below.

General Division Expiry date

Divisional HeadJudge Kevin Patrick O'Connor AM, President 9.8.04

Deputy PresidentsMagistrate Nancy Louise Hennessy 7.3.04Judge Megan Fay Latham 4.10.02Caroline Anne Needham SC 24.11.02

Judicial MembersReginald James Bartley AM 4.10.02Anne Britton 29.7.05Jennifer Louise Conley 2.6.05Janice Margery Connelly 2.6.05Bruce George Donald 28.2.05Garry Frederick Foster 24.11.02Robbert John Fox 25.11.05Penelope Helen Goode 8.10.03Eraine Elizabeth Grotte 2.6.05Sigrid Higgins 14.5.04Merryl Anne Lees 25.11.03Peter Henry Molony 2.6.05Stephen Henry Montgomery 14.5.04Jane Annabel Darling Needham 2.6.05Simon James Rice, OAM 25.11.03Mark Anthony Robinson 28.2.05Christopher Dominic Sidoti 2.6.05

Non-Judicial MembersZita Rose Antonios 25.11.05Clifford Douglas Blake AM 30.6.04Mary Elizabeth Bolt 31.5.04Keven William Mapperson 28.2.05Michael John McDaniel 25.11.05Annette Frances O'Neill 23.2.06Anthony Pun OAM 19.4.04

Non-Judicial Members Appointed to TribunalPursuant to Schedule 2, Part 4, Division 3 of theAdministrative Decisions Tribunal Act 1997 and thePublic Health Act 1997Annemarie Hennessy 19.4.04Richard Matthews 19.4.04

Non-Judicial Members Appointed to TribunalPursuant to the Veterinary Surgeons ActFiona Jennifer Clark 5.8.05Timothy Robert Crisp (23.7.02) 31.12.05David Lachlan Evans (11.02.03) 31.12.05Richard Eldred Jane (23.7.02) 31.12.05Rosalie Jane Mayo-Ramsay 5.8.05Garth Alexander McGilvray 31.12.05Nicholas Charles Sangster 31.12.02Tanya Lorraine Stephens (23.7.02) 31.12.05Ruth Rosemary Thompson 31.12.05

Non-Judicial Members Appointed to TribunalPursuant to the Education Act Terence Richard Burke 2.6.05Jolyn Margaret Karaolis 2.6.05Joseph Riordan AO 28.2.05

Equal Opportunity Division Current Expiry Date

Divisional Head

Magistrate Nancy Louise Hennessy- Divisional Head from 11.11.02 7.3.04Judge Megan Fay Latham, Deputy President 4.10.02

Deputy PresidentsActing Judge Michael Rainsford Chesterman(3.10.02) 2.10.05Caroline Anne Needham SC 24.11.02

Appendices

Appendix A: List of Members1 July 2002 to 30 June 2003

38

39

Judicial MembersReginald James Bartley AM 4.10.02Larissa Yasmin Behrendt (26.11.02) 25.11.05Michael Charles Biddulph 4.10.02David Lee Bitel 8.10.03Anne Britton 29.7.05Jennifer Louise Conley 2.6.05Janice Margery Connelly 2.6.05Penelope Helen Goode 8.10.03Phillipa Jane Gormly 8.10.03Eraine Elizabeth Grotte 2.6.05Graeme Gordon Innes AM 25.11.05Graham Reginald Ireland 25.11.05Merryl Anne Lees 25.11.03Chrissa Tereasa Loukas 8.10.03Jane Annabel Darling Needham 2.6.05Neil Robert Rees 8.10.03Simon James Rice OAM 25.11.03Christopher Dominic Sidoti 2.6.05

Non-Judicial MembersMerilyn Alt 8.10.03Zita Rose Antonios 25.11.05Mary Elizabeth Bolt 31.5.04Stevie Clayton 25.11.05Renia Douglas Cox 8.10.03Kellie Edwards 4.10.02Lolita Farmer OAM 4.10.02Karen Greenhill 8.10.03Susan Lee Harben 4.10.02Richard Frederick Jones 8.10.03Tina Louise Jowett 4.10.02Lawrence Kok Loong Lau 4.10.02Michael John Mcdaniel 25.11.05Owen Michael Mcdonald OAM 8.10.03Laura Clare Mooney 21.8.03Louise Nemeth De Bikal 8.10.03Anthony Pun OAM 19.4.04Cleonie Dorothy Quayle 30.4.04Anthony Nicholas Silva 4.10.02Jane Strickland 4.10.02Lucy Taksa 25.11.05Doreen Toltz 8.10.03Betty Lorraine Weule 14.5.04

Community Services Division Current Expiry Date

Divisional HeadThomas Joseph Kelly, Deputy President 31.5.04

Judicial MembersAnne Britton 29.7.05Ben Ami Gelin 31.5.04Phillipa Jane Gormly 8.10.03

Non-Judicial MembersMary Elizabeth Bolt 31.5.04David Edwin Dobell 31.5.04

Jennifer Green 23.8.05Denny Groth 31.5.04Lynn Mary Houlahan 23.8.05Alan John Kirkland 31.5.04Meredith Martin 23.8.05Jan Mason 31.5.04Linda Marilyn Monaghan-Nagle 31.5.04Jeanette McDonald Moss AM 23.8.05Clarita Norman 31.5.04

Legal Services Division Current Expiry Date

Divisional Head

Acting Judge John Anthony Nader RFD QC,Deputy President (1.9.02) 31.8.05Caroline Anne Needham SC,Deputy President - Divisional Headto 31.8.02 24.11.02

Deputy PresidentsActing Judge Alan Eugene Hogan (3.10.02) 3.1.04Acting Judge Michael Rainsford Chesterman(3.10.02) 2.10.05

Barrister MembersAnnabelle Claire Bennett SC 4.5.03*John Sebastian Coombs QC 24.11.02Garry Frederick Foster 24.11.02Robert Bruce Scott Macfarlan QC 16.12.05John Anthony McCarthy QC 16.12.05Linton Mearns Morris QC 24.11.02William Henric Nicholas QC 24.11.02Sharron Norton SC 16.12.05David Peter Forbes Officer QC 16.12.05Bruce Clifford Oslington QC 24.11.02Lionel Philip Robberds QC 16.12.05Wendy Louise Robinson QC 16.12.05Barry Michael Toomey QC 24.11.02John Norman West QC 16.12.05

Solicitor MembersMichael James Barnes 30.4.04John William Francis Brennan RFD 16.12.05Joseph John Catanzariti 24.11.02Roger James Clisdell 16.12.05Rosemary Cox 16.12.05John Sydney Currie 16.12.05Andrea Durbach 16.12.05Robbert John Fox 25.11.05Christine Anne Gailey 16.12.05Julie Louise Greenwood 16.12.05Sandra Neryl Hale 16.12.05Jennifer Margaret Mattila 16.12.05Graham Brian Molloy 25.11.05Johanna Pheils 30.4.04Conrad Gerard Staff 16.12.05Cedric Bohrsmann Vass 16.12.05

Licensee MembersPauline Ellen Curraey 30.4.04Janice Louise Hedison 30.4.04

Non-Judicial MembersCarl Donald Bennett 30.4.04Leshia Olga Bubniuk 30.4.04David Charles Brehe 23.2.06Michael Eugene Costigan 23.2.06Barrie Drummond Dyster 23.2.06Kersti Elliott 23.2.06Ross Andrew Edward Fitzgerald (24.2.03) 23.2.06Jennifer Anne Geddes 23.2.06Ray Gietzelt AO 30.4.04Elaine Hayes 30.4.04Davies Hoareau 23.2.06Alan Kennedy 23.2.06Elisabeth Wilma Kirkby 30.4.04Deborah Klika 30.4.04Denis Mahon 23.2.06Ann Marie Mara 23.2.06Annette Frances O'Neill 23.2.06Cleonie Dorothy Quayle 30.4.04Lucy Taksa 25.11.05

Retail Leases Division

Divisional Head

Acting Judge Michael Rainsford Chesterman(3.10.02) - Divisional Head from 25.6.03 2.10.05Christopher John Rossiter Deputy President -Divisional Head to 24.6.03 5.12.04

Deputy PresidentsMagistrate Nancy Louise Hennessy 7.3.04Alan Eugene Hogan (3.10.02) 3.1.04

Judge Megan Fay Latham 4.10.02Acting Judge John Anthony Nader RFD QC, DeputyPresident (1.9.02) 31.8.05Caroline Anne Needham SC 24.11.02

Judicial MembersBruce George Donald 28.2.05Robbert John Fox 25.11.05Margaret Colleen Hole 14.5.04Graham Brian Molloy 25.11.05Stephen Henry Montgomery 14.5.04

Non-Judicial MembersNeil Fagg 5.12.04Roger Kenneth Fairweather 5.12.04Garth Warren Griffiths 5.12.04Annette Frances O'Neill 23.2.06Barry Thomas Owens 5.12.04Robert Vaughan Ward 5.12.04Betty Lorraine Weule 14.5.04Lexia Gai Wilson 5.12.04

Revenue Division Current Expiry Date

Divisional HeadDivisional Head Yet To Be Appointed

Judicial MembersJulian Block 30.6.04Margaret Colleen Hole 14.5.04Joanne Christine Seve 30.6.04Amarjit Singh Verick 30.6.04

Non-Judicial MembersClifford Douglas Blake AM 30.6.04Carl Donald Bennett 30.4.04

* Resigned

40

Appendix B: LegislationPrincipal Legislation

Administrative Decisions Tribunal Act 1997

Administrative Decisions Tribunal LegislationFurther Amendment Act 1998

Administrative Decisions Tribunal(General) Regulation 1998

Administrative Decisions Tribunal Rules(Transitional) Regulation 1998

Primary Statutes

Adoption Act 2000

Agricultural Livestock(Disease Control Funding) Act 1998

Animal Research Act 1985

Anti-Discrimination Act 1977

Apiaries Act 1985

Architects Act 1921

Births Deaths and MarriagesRegistration Act 1995

Boxing and Wrestling Control Act 1986

Charitable Fundraising Act 1991

Child Protection(Offenders Registration) Act 2000

Child Protection(Prohibited Employment) Act 1998

Children (Care and Protection) Act 1987

Children and Young Persons

Appendices

41

(Care and Protection) Act 1998

Community Justices Centres Act 1983

Community Services (Complaints, Appeals andMonitoring) Act 1993

Community Services (Complaints, Appeals andMonitoring) Regulation 1996

Conveyancers Licensing Act 1995

Co-operative Housing and Starr-Bowkett SocietiesAct 1998

Dangerous Goods Act 1975

Disability Services Act 1993

Education Act 1990

Electricity Supply Act 1995

Entertainment Industry Act 1989

Environmental Planning andAssessment Act 1979

Fair Trading Act 1987

Farm Debt Mediation Act 1994

Fertilisers Act 1985

Firearms Act 1996

Firearms (General) Regulation 1997

First Home Owners Grant Act 2000

Fisheries Management Act 1994

Food Act 1989

Food Production(Safety) Act 1998

Food Production(Dairy Food Safety Scheme) Regulation 1999

Food Production (Meat Food Safety Scheme)Regulation 2000

Food Production (Seafood Safety Scheme)Regulation 2001

Forestry Act 1916

Freedom of Information Act 1989

Game and Feral Animal Control Act 2002

Gas Supply Act 1996

Guardianship Act 1987

Guardianship And Protected Estates LegislationAmendment Act 2002

Home Building Act 1989

Hunter Water Act 1991

Impounding Act 1993

Legal Profession Act 1987

Legal Profession Regulation 1994

Licensing and Registration(Uniform Procedures) Act 2002

Local Government Act 1993

Motor Dealers Act 1974

Motor Vehicle Sports(Public Safety) Act 1985

Mount Panorama Motor Racing Act 1989

Native Title Act 1994

Non-Indigenous Animals Act 1987

Nursing Homes Act 1988

Occupational Health and Safety Act 2000

Ombudsman Act 1974

Passenger Transport Act 1990

Pawnbrokers and Second-handDealers Act 1996

Pesticides Act 1999

Petroleum Product Subsidy Act 1997

Plant Diseases Act 1924

Police Act 1990

Privacy and Personal InformationProtection Act 1998

Private Hospitals and Day ProcedureCentres Act 1988

Protected Estates Act 1983

Protected Estates Regulation 1995

Public Health Act 1991

Public Lotteries Act 1996

Rail Safety Act 2002

Registration of Interests in Goods Act 1986

Retail Leases Act 1994

Road and Rail Transport(Dangerous Goods) Act 1997

Road Transport (General) Act 1999

Road Transport(Safety and Traffic Management) Act 1999

Security Industry Act 1997

Shops and Industries Act 1962

Stock (Artificial Breeding) Act 1985

Surveying Act 2002

Sydney Water Act 1994

Sydney Water CatchmentManagement Act 1998

Taxation Administration Act 1996

Timber Marketing Act 1977

Tow Truck Industry Act 1998

Trade Measurement Act 1989

Trade Measurement Administration Act 1989

Travel Agents Act 1986

Veterinary Surgeons Act 1986

Veterinary Surgeons Regulation 1995

Vocational Education and Training Accreditation Act1990

Weapons Prohibitions Act 1998

Workplace Injury Management and WorkersCompensation Act 1998

Youth and Community Services Act 1973

42

Appendix C: List of SpeechesJudge Kevin O’Connor, President

Papers27 September 2002‘An Overview of the Areas Covered by theAdministrative Decisions Tribunal includingProfessional Discipline Matters’Presentation to Wardell Chambers, 15 FloorNew South Wales Bar Association’s ContinuingProfessional Development Scheme.

25 March 2003‘Administrative Law in Practice’Indonesian Judicial Training ProgramJudicial Commission of New South Wales, Sydney.

28 March 2003‘Introduction to Justice Michael Kirby’Privacy Issues ForumWellington, New Zealand.

23rd April 2003‘The Administrative Decisions Tribunal’District Court of New South WalesAnnual Conference, Terrigal.

14 May 2003‘Practice and Procedure in the AdministrativeDecisions Tribunal’New South Wales Young Lawyers CLE Program.

Appendices

Administrative Decisions Tribunal & Legal Services DivisionADT LSD3 TOTAL

Actual Budget Variance Actual Actual

$ $ $ $ $Employee Related Payments(Including Crown Liabilities) 1,484,898 1,122,373 (362,525) 14,377 1,499,275

Property Items 367,799 491,240 123,441 367,799

Other Operating 1,119,624 1,454,325 334,701 362,274 1,481,898

Depreciation 68,436 53,792 (14,644) 68,436

Total Expenditure 3,040,757 3,121,730 80,973 376,651 3,417,408

Total Revenue 2 (691,012) (627,215) 63,797 (376,651) (1,067,663)

Net Cost Of Services 2,349,745 2,494,515 144,770 0 2,349,745

Less Depreciation (68,436) (53,792) 14,644 0 (68,436)

Less Crown Liabilities (229,635) (166,653) 62,982 0 (229,635)

Controlled Net Cost Of Services 2,051,674 2,274,070 222,396 0 2,051,674

Notes

1. This appendix has been based on information supplied by the Attorney General's Department. The Audit Office had not completed theaudit of the Department's financial statements when this information was supplied.

2. Revenue

The Tribunal received $1,067,663 in revenue. Of this $1,017,717 was by way of recoupment from the Public Purpose Fund for the cost ofoperating the Legal Services Division. The balance was general revenue items.

3. Legal Services Division

The Legal Services Division is funded by the Public Purpose Fund. A global amount is contributed towards the operating costs of theTribunal.

Additionally the costs of members fees and associated costs and transcription services provided to that Division are separatelyrecouped.These are the amounts shown in the LSD column.

Appendix D: Financial InformationFinancial Information as at 30 June 20031

43

General Division 1/7/2002 - 30/6/2003

1. Case flow 2002-2003

Matters pending at New Applications Disposals Pending as at30 June 2002 filed 30 June 2003

129 344 332 141

2. Applications by type 2002-2003

Applications for Original Decision Applications for review Professional Discipline

3 340 1

3. Applications by Act 2002-2003

Subject by ActApiaries Act 2Boxing & Wrestling Act 0Births Deaths and Marriages Act 1Conveyancers Licensing Act 0Dangerous Goods Act 0Education Act 1Environmental Planning & Assessment Act 1Fair Trading Act 8Firearms Act 46First Home Owners Grant Act 19Fisheries Management Act 13Freedom of Information Act 58Home Building Act 12Impounding Act 2Local Government Act (Original Decision) 0Motor Dealers Act 4Motor Vehicle Repairs Act 2Passenger Transport Act 41Pawnbrokers & Second Hand Dealers Act 0Privacy & Personal Information Protection Act 38Protected Estates Act 1Public Health Act 3Road Transport (General) Act (s.48) 48Security Industry Act 24Tow Truck Industry Act 11Travel Agents Act 7Veterinary Surgeons Act 0Vocational Education & Training Accreditation Act 1Question of Jurisdiction 0

4. Outcomes in Review matters 2002-2003

Application withdrawn Decision under Decision under Mixed Result No Dismissed/No appearance review affirmed review set aside/ - Partly Affirmed/ Jurisdiction

Dismissed/Agreement varied/remitted/ Partly set asidereached Dismissed recommendation made varied or remitted

117 158 38 7 7

* For statistical purposes the outcome of the review of conduct under the Privacy and Personal Information Protection Act1998 has been counted as affirmed where no contravention of the Act has been found by Tribunal and set aside where acontravention of the Act has been found by the Tribunal.

Appendix E: Statistics

44

5. Outcomes in Original matters 2002-2003

Application withdrawn dismissed/ Application granted Application refusedNo appearance dismissed/

Agreement reached dismissed

0 3 0

6. Outcomes in Professional Discipline 2002 -2003

Dismissed Orders made No juridisdiction

0 1 - Removed from register 1

7. Timeliness - time from date of application to date of disposal

No. disposed of in under 6 months 234No. disposed of in under 12 months 61No. disposed of in over 12 months 33No. disposed of in over 2 years 4

Community Services Division 1/7/2002 - 30/6/2003

1. Case flow 2002-2003

Matters pending at New Applications Disposals Pending as at30 June 2002 filed 30 June 2003

37 57 82 12

2. Applications by type 2002-2003

Applications for original decision Applications for review

48 9

3. Applications by Subject 2002-2003

Subject Number

Child care licence 1Custody 5Disability funding 0Guardianship 2Powers of Community Services Commission 1Declaration that Child Protection(Prohibited Employment) Act 1998 does not apply 48

4. Outcomes - Reviewable Decisions 2002-2003

Application withdrawn Decision under Decision under Mixed Result No Dismissed/No appearance review affirmed review set aside/ - Partly Affirmed/ Jurisdiction/

Dismissed/Agreement varied/remitted/ Partly set aside Jurisdictionreached Dismissed recommendation made varied or remitted Declined

8 1 1 1 4

5. Outcomes- Original Decisions 2002-2003

Application withdrawn dismissed/ Declaration Declaration NoNo appearance dismissed/ made Refused Jurisdiction

Agreement reached dismissed

11 31 7 18

Appendices

45

6. Mediation 2002-2003

No. of disposals where Settled at Settled after Proceededmediation was conducted Mediation Mediation to Hearing

3 0 2 1

7. Timeliness - time from date of application to date of disposal

No. disposed of in under 6 months 60No. disposed of in under 12 months 15No. disposed of in over 12 months 6No. disposed of in over> 2 years 1

Revenue Division 1/7/2002 - 30/6/2003

1. Case flow 2002-2003

Matters pending at Applications Disposals Matters pending as at30 June 2002 filed 30 June 2003

21 55 42 34

2. Applications by Type 2002-2003

Subject by Act

Duties Act 1997 7

Land Tax Management Act 1956 17

Parking Space Levy Act 1992 0

Payroll Tax Act 1971 5

Stamp Duties Act 1920 0

Taxation Administration Act 1996 26

3. Outcomes 2002 - 2003

Application withdrawn Decision under Decision under Mixed Result No Dismissed/No appearance review affirmed review set aside/ - Partly Affirmed/ Jurisdiction

Dismissed/Agreement varied/remitted/ Partly set asidereached Dismissed recommendation made varied or remitted

22 14 4 2 0

4. Timeliness - time from date of application to date of disposal

No. disposed of in under 6 months 22

No. disposed of in under 12 months 16

No. disposed of in over 12 months 4

No. disposed of in over 2 years 0

Legal Services Division 1/7/2002 - 30/6/2003

1. Case flow 2002-2003

Matters pending at Applications Disposals Pending as at30 June 2002 filed 30 June 2003

56* 18 51 23

* Pending as at 30 June 2002 is different from that shown in previous annual report due to manual reconciliation of files

2. Applications by type 2002-2003

Applications for original decision 18

3. Applications by subject 2002-2003

Type of Practitioner Type of conduct** Number

Solicitor PM 9Barrister PM 3Barrister PM & UPC 1Conveyancer PM 1S.48I & 48K Applications 4

**PM - professional misconduct, UPC - Unsatisfactory professional conduct

4. Outcomes 2002-2003

Withdrawn Dismissed 5No Jurisdiction 2Dismissed after hearing 3Penalty imposed by typeRemoved from Roll 9Removed from Roll and Fined 1"Removed from Roll and Compensation ordered" 4Suspended from Practice, Reprimanded and Legal Education Course 1Fined 1Legal Education Course 1Legal Education Course and Fined 1Reprimanded and Fined 6"Reprimanded, Fined and Legal Education Course" 1Reprimanded and Compensation ordered 3Reprimanded 6

S.48I & 48K Orders (convicted persons) 1

Total*** 45

***Total outcomes do not match total no. of disposals because some files heard together

5. Timeliness - time from date of application to date of disposal

No. disposed of in under 6 months 4No. disposed of in under 12 months 19No. disposed of in over 12 months 23No. disposed of in over 2 years 5

46

Appendices

47

Equal Opportunity Division 1/7/2002 - 30/6/2003

1. Case flow 2002-2003

Matters pending at New Applications Disposals Pending as at30 June 2002 filed 30 June 2003

106 150 151 105

* Pending as at 30 June 02 is different from that shown in previous annual report due to manual reconciliation of files

2. Applications by Type 2002-2003

Applications for original decision Applications for review

149 1

3. Applications by Ground 2002-2003

Head of discrimination** Number

Race 34Racial vilification 1Sexual harassment 32Sex 37Transgender 2Marital status 1Disability 51Carer's responsibilities 9Homosexuality 10Homosexual vilification 3Compulsory retirement 0HIV/Aids vilification 0Age 22Victimisation 39Aiding and Abetting 9Review of decision of President ADB 1

**NB: a number of complaints have been referred to the Tribunal under more than one head of discrimination

4. Outcomes Original Decisions 2002-2003

Withdrawn Dismissed/ Summary dismissal Dismissed after Orders madeSettled Dismissed/ under section 111 hearing

No Appearance Dismissed

108 7 19 16

5. Outcomes - Reviewable Decisions 2002-2003

Application withdrawn Decision under Decision under Mixed Result No Dismissed/No appearance review affirmed review set aside/ - Partly Affirmed/ Jurisdiction/

Dismissed/Agreement varied/remitted/ Partly set aside Jurisdictionreached Dismissed recommendation made varied or remitted Declined

1 0 0 0 0

6. Mediation

No. of disposals where Settled at Mediation Settled after Mediation Proceededmediation was conducted to Hearing

53 27 20 6

7. Timeliness - time from date of application to date of disposal

No. disposed of in under 6 months 65

No. disposed of in under 12 months 46

No. disposed of in over 12 months 20

No. disposed of in over 2 years 20

Retail Leases Division 1/7/2002 - 30/6/2003

1. Case flow 2002-2003

Matters pending at Applications Disposals Pending as at30 June 2002 filed 30 June 2003

84 142 159 67

2. Applications by Type 2002-2003

Relevant provision of Retail Leases Act 1994

Section 71 112

Section 71A - unconscionable conduct 0

Combined section 71 and section 71A 30

3. Outcomes 2002-2003

Withdrawn/Discontinued/ Dismissed after Settled - Orders made No JurisdictionDismissed without hearing hearing Orders made

103 16 3 34 3

4. Timeliness - time from date of application to date of disposal

No. disposed of in under 6 months 98

No. disposed of in under 12 months 39

No. disposed of in over 12 months 22

No. disposed of in over 2 years 0

Internal Appeals to Appeal Panel

1. Case Flow 2002 -2003

Appeals Pending New Appeals Disposals Pending as at as 30 June 2002 filed 30 June 03

General Division 14 33 25 22

Community Services Division 3 2 4 1

Equal Opportunity Division 15 15 21 9

Retail Leases Division 3 14 10 7

Revenue Division 0 5 1 4

Legal Services Division 6 3 6 3

Total 41 72 67 46

48

Appendices

49

2. Outcome of Internal Appeals 2002 - 2003

Upheld Dismissed Withdrawn/ No Jurisdiction T o t a l(in full or part) Discontinued

General Division 7 13 5 0 25

Community Services Division 0 4 0 0 4

Equal Opportunity Division 4 14 3 0 21

Retail Leases Division 2 5 3 0 10

Revenue Division 0 1 0 0 1

Legal Services Division 1 2 2 1 6

Total 14 39 13 1 67

3. Timeliness - time from date of appeal to date of determination

No. disposed of in under 6 months 41

No. disposed of in under 12 months 17

No. disposed of in over 12 months 4

No. disposed of in over 2 years 5

External Appeals to the Appeal Panel

1. Case Flow 2002 -2003

Appeals Pending New Appeals Disposals Pending as at as 30 June 2002 filed 30 June 03

Guardianship Tribunal 0 1 0 1

Mental Health Review Tribunal 0 0 0 0

Magistrate 0 0 0 0

Total 0 1 0 1

Appeals to the Supreme Court

1. Case Flow 2002 - 2003

Appeals Pending New Appeals Disposals Pending as at as 30 June 2002 filed 30 June 03

General Division 3 3 5 1

Community Services Division 4 1 5 0

Equal Opportunity Division 1 4 2 3

Retail Leases Division 0 0 0 0

Revenue Division 0 0 0 0

Legal Services Division 0 1 0 1

Total 8 9 12 5

2. Outcome of Appeals 2002 - 2003

Upheld Dismissed Withdrawn/ Orders made (in full or part) Discontinued following s118

referral

General Division 1 4 0 0

Community Services Division 0 3 2 0

Equal Opportunity Division 0 1 0 1

Retail Leases Division 0 0 0 0

Revenue Division 0 0 0 0

Legal Services Division 0 0 0 0

Total 1 8 2 1

Appendix F: Case Load, Time StandardsCase Load

All Divisions Appeal Panel

Applications Applications Applications Appeals Appeals AppealsLodged Completed Pending Lodge Completed Pending

1998-1999 625** 234 394* 8 2 6

1999-2000 568 619 343* 44 20 31*

2000-2001 666 629 380 53 45 39

2001-2002 695 642 433* 61 59 41

2002-2003 766 817 382 73 67 47

Total 3264 2921 238 191

* Pending figures as reported in previous annual reports adjusted following manual reconciliation of files and/or changesto data recording.

** Includes 257 transferred from predecessor tribunals or District Court on 6 October 1998 and 1 January 1999.

Rates of AppealMany of the appeals during 2002-2003 were related to decisions made in the previous period. Nonetheless,for the sake of obtaining a broad overview of the rate of appeals from various Divisions, the followingstatistics compare the distribution of appeals between Divisions for 2002-2003 with the distribution ofcases between Divisions (excluding for that purpose CPPE Act decisions in the Community Services Divisionwhich are not appealable) in 2002-2003. The comparisons are necessarily therefore inexact as they comparethe appeals lodged this year with the intake of the Divisions for this year, whereas appeals will often arisefrom the previous year's intake.

It is also the case that an appeal can be made against any decision made in the course of proceedings, notjust final decisions. So the number of potentially appealable decisions is greater than the number of casesthat lead to final orders. Obviously most appeals do relate to cases in which there are final orders. For thepurpose of statistical comparisons cases finalised is used as the reference point.

50

Appendices

51

The comparison is as follows:

Division No. of Appealable % No. of Appeals %Filings

General Division 344 48% 33 46%

Community Services Division 9 1% 2 3%

Revenue Division 55 8% 5 7%

Legal Services Division 18 3% 3 4%

Equal Opportunity Division 150 21% 15 21%

Retail Leases Division 142 20% 14 19%

Time StandardsThe following standards commenced operation on 1 March 2001.

General Division (other than professional discipline matters)Community Services DivisionRevenue Division

– 85% of matters disposed of in less than 6 months– 100% of matters disposed of in less than 1 year

Equal Opportunity Division (other than review matters) – 80% of matters disposed of in less than 1 year– 100% of matters disposed of in less than 2 years

Professional Discipline Decisions Legal Services DivisionGeneral Division

– 90% of matters disposed of in less than 9 months– 100% of matters disposed of in less than 1 year

AppealsInternal Appeals from appealable decisions of the Tribunal and External Appeals

– 80% of matters disposed of in less than 6 months– 100% of matters disposed of in less than 1 year

As at 30 June 2003 the Tribunals performance against those standards was:

General Division (other than professional discipline matters)Community Services DivisionRevenue Division

– 82% of matters disposed of in less than 6 months– 95% of matters disposed of in less than 1 year– Clearance ratio* 102%

Equal Opportunity Division (other than review matters) – 80% of matters disposed of in less than 1 year– 91% of matters disposed of in less than 2 years– Clearance ratio* – 101 %

Professional Discipline Decisions Legal Services DivisionGeneral Division

– 36% of matters disposed of in less than 9 months– 48% of matters disposed of in less than 1 year– Clearance ratio* - 279 %

AppealsInternal Appeals from appealable decisions of the Tribunal and External Appeals

– 83% of matters disposed of in less than 6 months– 89% of matters disposed of in less than 1 year– Clearance ratio* - 92%

*clearance ratio is the percentage of cases disposed of divided by cases lodged over the last 12 months.

52

Final RecommendationsThe Report on the Jurisdiction and Operation of theAdministrative Decisions Tribunal was released bythe Committee on the Office of the Ombudsman andPolice Integrity Commission in November 2002.

Recommendation 1

Legislation should be brought forward to mergeseparate tribunals with the ADT, unless there are clearreasons why such inclusion would be inappropriate orimpractical, with particular consideration being givento merging all professional disciplinary tribunals withthe ADT, as part of a separate professionaldisciplinary division.

Recommendation 2

a. Explicit criteria for determining those classesof administrative decisions which wouldappropriately fall within the external meritsreview jurisdiction of the ADT should bedeveloped by the Attorney General, inconsultation with the ADT, in the first instance,as an interim measure pending theestablishment of an Administrative ReviewAdvisory Council.

b. The Attorney General’s Department shouldconsult all departments and agencies toidentify those classes of administrativedecisions which currently meet such criteriaand which should, therefore, be subject toexternal merits review by the ADT, havingregard to the work done by the CommonwealthAdministrative Review Council in this area.

c. Legislation should be introduced to conferreview jurisdiction on the ADT in respect ofthose decisions which currently meet theagreed external review criteria.

Recommendation 3

There should be a presumption in future that allclasses of administrative decisions provided forunder new legislation, so long as they meet thecriteria developed by the Attorney General should besubject to external merits review by the ADT.

Recommendation 4

The ADT Act should be amended to provide for theestablishment of an Administrative Review AdvisoryCouncil with the following functions:

a. to further develop explicit criteria fordetermining the classes of administrative

decisions which would appropriately fall withinthe ADT’s external merits review jurisdiction

b. ongoing review of the ADT’s jurisdiction withparticular focus on the assessment of tribunalsand similar bodies in New South Wales, for thepurpose of recommending whether they canappropriately be merged with the ADT

c. oversight of the administrative law system inNew South Wales, through performing functionsanalogous to those of the Administrative ReviewCouncil under Part V of the AdministrativeAppeals Tribunal Act 1975 (Clth).

The Committee further recommends that the proposedAdministrative Review Advisory Council, wherenecessary, should be able to make generalobservations and provide advice on the practices andprocedures of the ADT in relation to its handling ofapplications and case disposals. The ADT shouldcontinue to report to the Attorney General on mattersof operational efficiency, effectiveness andperformance, and relevant information should beincluded in the ADT’s Annual Report.

Recommendation 5

The proposed Administrative Review Advisory Councilshould, in particular, monitor the progress achieved inmerging existing tribunals with the ADT and also havean ongoing role in the further review and developmentof criteria for defining the appropriate extent of theADT’s merits review jurisdiction.

Recommendation 6

The membership of the proposed AdministrativeReview Advisory Council should comprise a President,two ex officio members (the Ombudsman and thePresident of the Law Reform Commission), and at leastthree members with special qualifications.

A person appointed in the special qualificationscategory should have:

a. extensive experience at a high level in industry,commerce, public administration, industrialrelations, the practice of a profession or theservice of a government or of an authority of agovernment;

b. or extensive knowledge of administrative law orpublic administration;

c. or direct experience, or direct knowledge, of theneeds of people, or groups of people,significantly affected by government decisions.

Appendix G: Parliamentary Inquiry

Appendices

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Recommendation 7

7a The proposed Administrative Review AdvisoryCouncil should report to the Attorney General,who in turn should present each of theCouncil’s reports to Parliament within fifteensitting days of receiving the report.

7b The proposed Administrative Review AdvisoryCouncil should prepare an annual report on itsoperations to the Attorney General for tablingin Parliament.

Recommendation 8

8a Pending the establishment of the proposedAdministrative Review Advisory Council(ARAC), the Attorney General should assumeresponsibility for the performance of thefunctions recommended for ARAC.

8b The Committee further recommends that toassist the Attorney General in this role theproposed membership of the ARAC should beconvened as a Working Group, pending theestablishment of the ARAC.

8c The NSW Law Reform Commission (LRC)conduct a review of existing tribunals andsimilar bodies in New South Wales, with aparticular focus on disciplinary tribunals, todetermine whether it is feasible andappropriate to merge them with the ADT.

8d The Committee further recommends that theLRC report to the Attorney General on theoutcome of the review and that the AttorneyGeneral table the report in Parliament upon itsreceipt.

Recommendation 9

The statutory functions of the President and DeputyPresidents of the NSW ADT should be amended, interms similar to s.30 of the Victorian Civil andAdministrative Tribunal Act 1998, to includeresponsibility for directing the professionaldevelopment and training of tribunal members.

Recommendation 10

That the ADT Act be amended to provide:

a. the ADT is to be constituted for the purposes ofany particular proceedings by 1, 2 or 3members

b. if a Tribunal panel is constituted at aproceeding by one member only, that membermust be a legal practitioner

c. if a Tribunal panel is constituted by more thanone member, at least one must be a legalpractitioner

d. the President, or relevant Divisional Head,should determine how the ADT is to beconstituted for the purposes of eachproceeding.

Recommendation 11

In relation to Proposals 5-9, 12 and 14-15 of theDiscussion Paper, which do not require legislativeaction, the Committee recommends that the ADTreport on any initiatives taken towards implementingthe proposals and related outcomes in its AnnualReport.

Tribunal Report further toRecommendation 11The following response refer to action taken by theTribunal. Some of the proposals raised issues that arelikely to be resolved as part of the further statutoryreview being undertaken at present by the AttorneyGeneral; while others are likely to be the subject of amiscellaneous amendments bill soon to beintroduced into Parliament relating to the practiceand procedure of the Tribunal (and some elements ofthe substantive law) especially in the EqualOpportunity Division and the Legal Services Division.The following report in relation to the proposals isdivided by topic.

Membership of the Administrative Decisions Tribunal

Discussion Paper Proposal 12: That the ADT Act beamended to provide for some full-time members ofthe ADT and that the appropriate resources beprovided.

Discussion Paper Proposal 14: That an examination ofthe membership structure of the ADT be conducted,focussing on the extent of part-time membership,with particular reference to the Legal ServicesDivision

Status Report:

These proposals were made in March 2001. InNovember 2001 when the President ceased to beChairperson (part-time) of the Fair Trading Tribunal,his time became available completely to the ADT. InMarch 2001 Deputy President Hennessy became full-time. There have been no further full-time positionscreated. There has been a small reduction in thenumber of part-time members attached to the LegalServices Division.

User Consultation

Discussion Paper Proposal 7: A consultativemechanism be put in place whereby the ADT will

regularly consult with user groups, and periodicallysurvey representative samples of users of theTribunal, to identify any problems experienced in theoperation and possible procedural improvements.

Status Report:

The Rule Committee Divisional sub-committees nowmeet more regularly, at least twice a year. In additionthere is a Freedom of Information and Privacy UsersGroup. The President has decided to establish aProfessional Discipline Advisory Group. Professionsaffected by the disciplinary jurisdictions of theTribunal have nominated members for the group,including consumer members. This group willfunction as a user group and one of its tasks will beseek to develop common professional disciplinerules, perhaps using the existing Legal ServicesDivision rules as a basis. It will commence meeting inFebruary 2004.

Aspects of the Rules and Practice of the Tribunal

Discussion Paper Proposal 8: The Rule Committeehave an ongoing responsibility to consider:

a) the scope for further standardisation of rulesapplying in the various divisions of the ADT;

b) whether the rules are able to furtherencourage the use of alternative disputeresolution techniques; and

c) whether the rules provide the maximumappropriate support encouraging accessibilityand informality of proceedings.

Discussion Paper Proposal 9: That consideration begiven to implementing some form of duty solicitorscheme, limited to proceedings where a governmentagency is the respondent, on a pilot basis as a trialsolution for resolving the issue of access to legalrepresentation.

Status Report:

Proposal 8 has been referred by the Rule Committeeto the Divisional sub-committees. The sub-committees have yet to report back.

A duty solicitor scheme operates for the EqualOpportunity Division. A counsel assisting facility isbeing developed for guardianship and protectedestates matters, in liaison with the Office of LegalRepresentation of the Attorney General’sDepartment. The Tribunal does not have an budgetarycapacity to fund a duty solicitor scheme.

Resources

Discussion Paper Proposal 15: That a review beconducted of the total resources available to the ADTto perform its full range of functions across all

divisions including in respect of research and libraryneeds.

Status Report:

The broad issue of the Tribunal’s resources is underconsideration in the Attorney General’s statutoryreview. The Tribunal has established an additionalposition of Research Associate to the President. Theposition commenced in November 2001. This positionis responsible, among other things, for thepreparation of research bulletins, maintenance of themembers’ manual, management of the Tribunallibrary and assistance to members in relation tospecial research requests and general researchsupport to the President and the full-time DeputyPresident. The library needs of the Tribunal are beingexamined at present by the review of library servicesbeing undertaken by the Attorney General’sDepartment.

The Legal Services Division

Discussion Paper Proposal 5: The Rule Committee ofthe ADT conduct a review of the rules of the LegalServices Division, involving consultation withrepresentatives of the major users of this Division, inparticular the Office of the Legal ServicesCommissioner, the Bar Association and the LawSociety.

Discussion Paper Proposal 6: The Rule Committeeexamine the feasibility of amending the rules of theLegal Services Division to provide for a period ofthree months between the formal decision to takedisciplinary proceedings against a practitioner andfiling in the ADT.

Status Report:

The question of review of the LSD rules has beenreferred to the Divisional sub-committee. There havebeen no substantial recommendations for change. Itwill also be taken up by the Professional DisciplineAdvisory Group in 2004.

The time for filing informations is a legislative issue.

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Appendices

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Appendix H: Rule SubcommitteeMembershipAdministrative Decisions Tribunal Subcommittees of the Rule Committee - Membership (section 97Administrative Decisions Tribunal Act 1997)

General Division1. Divisional Head: Judge Kevin O’Connor2. Judicial member: Simon Rice3. Non judicial member: Mary Bolt4. Community/special interest member: Wayne Kosh, Ombudsman’s Office5. Community/special interest member: Simon Moran, Representative from PIAC6. Community/special interest member: Brad Rowe Representative from Law Society’s Standing Committee for

Government solicitors

Community Services Division1. Divisional Head: Tom Kelly2. Judicial member: Anne Britton 3. Non judicial member: Jenny Green4. Community/special interest member: Robert McLachlan, Law Society’s Standing Committee on Children’s

Legal Issues5. Community/special interest member: Robert Ludbrook, National Childrens & Youth Law Centre6. Community/special interest member: Craig Waricker, Representative from Commissioner for Children and

Young People

Equal Opportunity Division1. Divisional Head: Nancy Hennessy2. Judicial member: Graham Ireland3. Non judicial member: Owen MacDonald4. Community/special interest member: Representative from the Legal Aid Commission5. Community/special interest member: Raoul Salpeter, Crown Solicitors Office 6. Community/special interest member: David Hillard (or his nominee), Clayton Utz

Retail Leases Division 1. Divisional Head: Acting Judge Michael Chesterman2. Judicial member: Bruce Donald3. Non judicial member: Betty Weule4. Community/special interest member: Ken Carlsund, Retail Tenancy Unit5. Community/special interest member: Bill Healey, Australian Retailers Association6. Community/special interest member: Lexia Wilson, Representative of the Property Council of Australia

Legal Services Division1. Divisional Head: Acting Judge John Nader QC2. Judicial member: David Officer3. Non judicial member: Dr Michael Costigan4. Community/special interest member: Steve Mark, Legal Services Commissioner5. Community/special interest member: Ray Collins, Law Society6. Community/special interest member: Peter Garling, Bar Association

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